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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date
of Report (Date of earliest event reported): May 13, 2024 (May 7, 2024)
Nano
Nuclear Energy Inc.
(Exact
name of registrant as specified in its charter)
Nevada |
|
001-42044 |
|
88-0861977 |
(State
or other jurisdiction
of
incorporation) |
|
(Commission
File
Number) |
|
(IRS
Employer
Identification
No.) |
10
Times Square, 30th Floor
New
York, New York 10018
(Address
of principal executive offices, including zip code)
Registrant’s
telephone number, including area code: (212) 634-9206
Not
Applicable
(Former name or former address, if changed since last report)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions:
|
☐ |
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|
|
|
|
☐ |
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
|
|
|
|
☐ |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
|
|
|
|
☐ |
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities
registered pursuant to Section 12(b) of the Act:
Title
of each class |
|
Trading
Symbol(s) |
|
Name
of each exchange on which registered |
|
|
|
|
|
Common
Stock, par value $0.0001 per share |
|
NNE |
|
The
Nasdaq Stock Market LLC |
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company ☒
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
Item
1.01. Entry into a Material Definitive Agreement.
Initial
Public Offering
On
May 7, 2024, Nano Nuclear Energy Inc., a Nevada corporation, (the “Company”), entered into an underwriting agreement
(the “Underwriting Agreement”) with The Benchmark Company, LLC, acting as the sole book-running manager (“Benchmark”)
of the Company’s firm commitment underwritten initial public offering (the “Offering”). Pursuant to the Underwriting
Agreement, the Company agreed to sell to Benchmark an aggregate of 2,562,500 shares (the “Shares”) of the Company’s
common stock, par value $0.0001 per share (the “Common Stock”) at a price of $4.00 per share (the “Offering
Price”). On May 10, 2024 (the “Closing Date”), the Company consummated the closing of the Offering, generating
gross proceeds of approximately $10,250,000 and net proceeds (after deducting discounts and offering expenses) of approximately $9,000,000.
The Common Stock is listed on the Nasdaq Capital Market under the trading symbol “NNE.”
Pursuant
to the Underwriting Agreement, the Company has granted Benchmark the option (“Over-Allotment Option”), exercisable
for 30 days from May 7, 2024, to purchase up to an additional 384,375 from the Company at the Offering Price, less the underwriting discount,
to cover over-allotments.
The
Shares were offered by the Company pursuant to a Registration Statement on Form S-1, as amended (File No. 333-278076), which was originally
filed with the Securities and Exchange Commission (the “Commission”) on March 19, 2024, and declared effective by
the Commission on May 6, 2024 (the “Registration Statement”).
The
Underwriting Agreement contains customary representations and warranties that the parties made to, and solely for the benefit of, the
other party in the context of the terms and conditions of that agreement and in the context of the specific relationship between the
parties. The Company has also agreed that it will not, without the prior written consent of Benchmark, 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 or any securities convertible into or exercisable or exchangeable
for shares of Common Stock for a period of six (6) months following the Closing Date, other than certain exempt issuances.
A
copy of the final, executed Underwriting Agreement is included as Exhibit 1.1 hereto, and is incorporated herein by reference.
Underwriter’s
Warrant
Pursuant
to the Underwriting Agreement, as partial compensation for its services on May 10, 2024, the Company issued to Benchmark a warrant to
purchase up to 179,375 shares of Common Stock (the “Underwriter’s Warrant”). In the event that Benchmark exercises
its Over-Allotment Option, the Underwriter’s Warrant will be increased by an additional approximately 26,906 shares of Common Stock.
The Underwriter’s Warrant is exercisable at a per share exercise price equal to $5.00 and is exercisable at any time and from time
to time, in whole or in part, for a term of five years commencing from the first day of the seventh month after the Closing Date, and
terminating on May 10, 2029. Neither the Underwriter’s Warrant nor any of the shares of Common Stock issued upon exercise of the
Underwriter’s Warrant may be sold, transferred, assigned, pledged or hypothecated, or be the subject of any hedging, short sale,
derivative, put or call transaction that would result in the effective economic disposition of such securities by any person, for a period
of one hundred and eighty (180) days immediately following the Closing Date, except as permitted by applicable FINRA rules. The shares
of Common Stock underlying the Underwriter’s Warrant are registered for public resale pursuant to the Registration Statement but
do not provide for ongoing registration rights.
The
foregoing summary of the terms of the Underwriting Agreement and the Underwriter’s Warrant are subject to, and qualified in their
entirety by reference to, copies of the Underwriting Agreement and the Underwriter’s Warrant that are filed as Exhibits 1.1 and
4.1, respectively, to this Current Report on Form 8-K and are incorporated herein by reference.
Item
8.01 Other Events.
On
May 13, 2024, the Company issued a press release announcing the closing of the Offering. A copy of the press release is filed as Exhibit
99.1 to this Current Report on Form 8-K and is incorporated by reference herein.
Item
9.01 Financial Statements and Exhibits.
(d)
Exhibits
The
following exhibits are being filed herewith:
SIGNATURE
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.
Dated:
May 13, 2024 |
Nano
Nuclear Energy Inc. |
|
|
|
|
By: |
/s/
James Walker |
|
Name:
|
James
Walker |
|
Title: |
Chief
Executive Officer |
Exhibit
1.1
NANO
NUCLEAR ENERGY INC.
UNDERWRITING
AGREEMENT
New
York, New York
May 7, 2024
The
Benchmark Company, LLC
As
Representative of the several underwriters named on Schedule 1 attached hereto
150
E. 58th Street, 17th Floor
New
York, NY 10155
Ladies
and Gentlemen:
The
undersigned, Nano Nuclear Energy Inc., a corporation formed under the laws of the State of Nevada (collectively with its subsidiaries
and affiliates, including, without limitation, all entities disclosed or described in the Registration Statement (as hereinafter defined)
as being subsidiaries or affiliates of Nano Nuclear Energy Inc., the “Company”), hereby confirms its agreement (this “Agreement”)
with The Benchmark Company, LLC (hereinafter referred to as “you” (including its correlatives) or the “Representative”)
and with the other underwriters named on Schedule 1 hereto for which the Representative is acting as representative (the Representative
and such other underwriters being collectively called the “Underwriters” or, individually, an “Underwriter”)
as follows:
1.
Purchase and Sale of Shares.
1.1
Firm Shares.
1.1.1.
Nature and Purchase of Firm Shares.
(i)
On the basis of the representations and warranties herein contained, but subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to the several Underwriters, an aggregate of 2,562,500 shares (“Firm Shares”) of the Company’s
common stock, $0.0001 par value per share (the “Common Stock”).
(ii)
The Underwriters, severally and not jointly, agree to purchase from the Company the number of Firm Shares set forth opposite their respective
names on Schedule 1 attached hereto and made a part hereof at a purchase price of $3.72 per share (93% of the per Firm Share
offering price). The Firm Shares are to be offered initially to the public at the offering price set forth on the cover page of the Prospectus
(as defined in Section 2.1.1 hereof).
1.1.2.
Shares Payment and Delivery.
(i)
Delivery and payment for the Firm Shares shall be made at 10:00 a.m., Eastern time, on the second (2nd) Business Day following
the effective date (the “Effective Date”) of the Registration Statement (as defined in Section 2.1.1 below) (or the third
(3rd) Business Day following the Effective Date if the Registration Statement is declared effective after 4:01 p.m., Eastern
time) or at such earlier time as shall be agreed upon by the Representative and the Company, at the offices of Ellenoff Grossman &
Schole LLP, 1345 Avenue of the Americas, New York, NY 10105 (“Company Counsel”), or Lucosky Brookman LLP, 101 wood Avenue
South, 5th Floor, Woodbridge, NJ 08830 (“Representative Counsel”) or at such other place (or remotely by facsimile
or other electronic transmission) as shall be agreed upon by the Representative and the Company. The hour and date of delivery and payment
for the Firm Shares is called the “Closing Date.”
(ii)
Payment for the Firm Shares shall be made on the Closing Date by wire transfer in Federal (same day) funds, payable to the order of the
Company upon delivery of the certificates (in form and substance satisfactory to the Underwriters) representing the Firm Shares or through
the facilities of the Depository Trust Company (“DTC”) for the account of the Underwriters. The Firm Shares shall be registered
in such name or names and in such authorized denominations as the Representative may request in writing at least two (2) full Business
Days prior to the Closing Date. The Company shall not be obligated to sell or deliver the Firm Shares except upon tender of payment by
the Representative for all of the Firm Shares. The term “Business Day” means any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions are authorized or obligated by law to close in New York, New York.
1.2
Over-Allotment Option.
1.2.1 For
the purposes of covering any over-allotments in connection with the distribution and sale of the Firm Shares, the Representative is hereby
granted an option (the “Over-Allotment Option”) to purchase, in the aggregate, up to 384,375 shares of Common Stock (the
“Option Shares” and, collectively with the Firm Shares, the “Public Securities”). If the Over-Allotment Option
is exercised in whole or in party, the Option Shares shall be purchased by the Underwriters in the amounts set forth opposite their respective
names on Schedule 1 attached hereto (or a pro rata portion thereof if less than the full Over-Allotment Option is exercised).
1.2.2 In
connection with an exercise of the Over-Allotment Option, the aggregate purchase price to be paid for the Option Shares is equal to the
product of the number of Option Shares to be purchased multiplied by the same price per share paid by the Underwriters for the Firm Shares
as provided for in Section 1.1.1(ii).
1.2.3
The Over-Allotment Option granted pursuant to this Section 1.2 may be exercised by the Representative as to all (at any time) or any
part (from time to time) of the Option Shares within thirty (30) days after the Effective Date. An Underwriter will not be under any
obligation to purchase any Option Shares prior to the exercise of the Over-Allotment Option by the Representative. The
Over-Allotment Option granted hereby may be exercised by the giving of oral notice to the Company from the Representative, which
must be confirmed in writing by facsimile or other electronic transmission setting forth the number of Option Shares to be purchased
and the date and time for delivery of and payment for the Option Shares (each, an “Option Closing Date”), which will not
be later than two (2) full Business Days after the date of the notice or such other time as shall be agreed upon by the Company and
the Representative, at the offices of Company Counsel or at such other place (including remotely by facsimile or other electronic
transmission) as shall be agreed upon by the Company and the Representative. If such delivery and payment for the Option Shares does
not occur on the Closing Date, each Option Closing Date will be as set forth in the notice. Upon exercise of the Over-Allotment
Option, the Company will become obligated to convey to the Underwriters, and, subject to the terms and conditions set forth herein,
the Underwriters will become obligated to purchase, the number of Option Shares specified in such notice. The Representative may
cancel the Over-Allotment Option at any time prior to the expiration of the Over-Allotment Option by written notice to the
Company.
2.
Representations and Warranties of the Company. The Company hereby represents and warrants to, and agrees with, the Underwriters
as of the Applicable Time (as defined below), as of the Closing Date, as follows:
2.1
Filing of Registration Statement.
2.1.1.
Pursuant to the Securities Act. The Company has filed with the U.S. Securities and Exchange Commission (the “Commission”)
a registration statement, and an amendment or amendments thereto, on Form S-1 (File No. 333-278076), including any related prospectus
or prospectuses, for the registration of the Public Securities under the Securities Act of 1933, as amended (the “Securities Act”),
which registration statement and amendment or amendments have been prepared by the Company in all material respects in conformity with
the requirements of the Securities Act and the rules and regulations of the Commission under the Securities Act (the “Securities
Act Regulations”) and will contain all material statements that are required to be stated therein in accordance with the Securities
Act and the Securities Act Regulations. Except as the context may otherwise require, such registration statement, as amended, on file
with the Commission at the time the registration statement became effective (including the Preliminary Prospectus included in the registration
statement, financial statements, schedules, exhibits and all other documents filed as a part thereof or incorporated therein and all
information deemed to be a part thereof as of the Effective Date pursuant to paragraph (b) of Rule 430A of the Securities Act Regulations
(the “Rule 430A Information”)), is referred to herein as the “Registration Statement.” If the Company files any
registration statement pursuant to Rule 462(b) of the Securities Act Regulations, then after such filing, the term “Registration
Statement” shall include such registration statement filed pursuant to Rule 462(b). The Registration Statement has been declared
effective by the Commission on the date hereof.
Each
prospectus used prior to the effectiveness of the Registration Statement, and each prospectus that omitted the Rule 430A Information
that was used after such effectiveness and prior to the execution and delivery of this Agreement, is herein called a “Preliminary
Prospectus.” The Preliminary Prospectus, subject to completion, dated April 23, 2024, that was included in the Registration
Statement immediately prior to the Applicable Time is hereinafter called the “Pricing Prospectus.” The final prospectus in
the form first furnished to the Underwriters for use in the Offering is hereinafter called the “Prospectus.” Any reference
to the “most recent Preliminary Prospectus” shall be deemed to refer to the latest Preliminary Prospectus included in the
Registration Statement.
“Applicable
Time” means 4:30 p.m., Eastern time, on the date of this Agreement.
“Issuer
Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 of the Securities Act Regulations
(“Rule 433”), including, without limitation, any “free writing prospectus” (as defined in Rule 405 of the Securities
Act Regulations) relating to the Public Securities that is (i) required to be filed with the Commission by the Company, (ii) a “road
show that is a written communication” within the meaning of Rule 433(d)(8)(i), whether or not required to be filed with the Commission,
or (iii) exempt from filing with the Commission pursuant to Rule 433(d)(5)(i) because it contains a description of the Public Securities
or of the Offering that does not reflect the final terms, in each case in the form filed or required to be filed with the Commission
or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g).
“Issuer
General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general distribution to prospective
investors (other than a “bona fide electronic road show,” as defined in Rule 433 (the “Bona Fide Electronic
Road Show”)), as evidenced by its being specified in Schedule 2-B hereto.
“Issuer
Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not an Issuer General Use Free Writing Prospectus.
“Pricing
Disclosure Package” means any Issuer General Use Free Writing Prospectus issued at or prior to the Applicable Time, the Pricing
Prospectus and the information included on Schedule 2-A hereto, all considered together.
2.1.2.
Pursuant to the Exchange Act. The Company has filed with the Commission a Form 8-A (File Number 001-42044) providing for the
registration pursuant to Section 12(b) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), of the
shares of Common Stock. The registration of the shares of Common Stock under the Exchange Act has been declared effective by the Commission
on or prior to the date hereof. The Company has taken no action designed to, or likely to have the effect of, terminating the registration
of the shares of Common Stock under the Exchange Act, nor has the Company received any notification that the Commission is contemplating
terminating such registration.
2.2
Stock Exchange Listing. The shares of Common Stock have been approved for listing on The Nasdaq Capital Market (the “Exchange”)
under the symbol “NNE”, and the Company has taken no action designed to, or likely to have the effect of, delisting the shares
of Common Stock from the Exchange, nor has the Company received any notification that the Exchange is contemplating terminating such
listing except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
2.3
No Stop Orders, etc. Neither the Commission nor, to the Company’s knowledge, any state regulatory authority has issued any
order preventing or suspending the use of the Registration Statement, any Preliminary Prospectus or the Prospectus or has instituted
or, to the Company’s knowledge, threatened to institute, any proceedings with respect to such an order. The Company has complied
with each request (if any) from the Commission for additional information.
2.4
Disclosures in Registration Statement.
2.4.1.
Compliance with Securities Act and 10b-5 Representation.
(i)
Each of the Registration Statement and any post-effective amendment thereto, at the time it became effective, complied in all material
respects with the requirements of the Securities Act and the Securities Act Regulations. Each Preliminary Prospectus, including the prospectus
filed as part of the Registration Statement as originally filed or as part of any amendment or supplement thereto, and the Prospectus,
at the time each was filed with the Commission, complied in all material respects with the requirements of the Securities Act and the
Securities Act Regulations. Each Preliminary Prospectus delivered to the Underwriters for use in connection with this Offering and the
Prospectus was or will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
(ii)
Neither the Registration Statement nor any amendment thereto, at its effective time, as of the Applicable Time, at the Closing Date,
contained, contains or will contain an untrue statement of a material fact or omitted, omits or will omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading.
(iii)
The Pricing Disclosure Package, as of the Applicable Time, at the Closing Date, did not, does not and will not include an untrue statement
of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading; and each Issuer Limited Use Free Writing Prospectus hereto does not conflict in any material
respect with the information contained in the Registration Statement, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus,
and each such Issuer Limited Use Free Writing Prospectus, as supplemented by and taken together with the Pricing Prospectus as of the
Applicable Time, did not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that this representation
and warranty shall not apply to statements made or statements omitted in reliance upon and in conformity with written information furnished
to the Company with respect to the Underwriters by the Representative expressly for use in the Registration Statement, the Preliminary
Prospectus, the Pricing Prospectus or the Prospectus or any amendment thereof or supplement thereto. The parties acknowledge and agree
that such information provided by or on behalf of any Underwriter consists solely of the following disclosure contained in the “Underwriting”
section of the Prospectus: the name of each Underwriter and corresponding share amounts set forth in the table of Underwriters, the concession
amount set forth in the subsection “Discount and Expenses” and the information under the subsections “Discretionary
Accounts,” “Electronic Offer, Sale and Distribution of Shares,” “Stabilization,” “Passive Market
Making,” and “Offer Restrictions Outside the United States” (the “Underwriters’ Information”); and
(iv)
Neither the Prospectus nor any amendment or supplement thereto (including any prospectus wrapper), as of its issue date, at the time
of any filing with the Commission pursuant to Rule 424(b), at the Closing Date, included, includes or will include an untrue statement
of a material fact or omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply
to the Underwriters’ Information.
2.4.2.
Disclosure of Agreements. The agreements and documents described in the Registration Statement, the Pricing Disclosure Package
and the Prospectus conform in all material respects to the descriptions thereof contained therein and there are no agreements or other
documents required by the Securities Act and the Securities Act Regulations to be described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus or to be filed with the Commission as exhibits to the Registration Statement, that have not been
so described or filed. Each agreement or other instrument (however characterized or described) to which the Company is a party or by
which it is or may be bound or affected and (i) that is referred to in the Registration Statement, the Pricing Disclosure Package and
the Prospectus, or (ii) is material to the Company’s business, has been duly authorized and validly executed by the Company, is
in full force and effect in all material respects and is enforceable against the Company and, to the Company’s knowledge, the other
parties thereto, in accordance with its terms, except (x) as such enforceability may be limited by bankruptcy, insolvency, reorganization
or similar laws affecting creditors’ rights generally, (y) as enforceability of any indemnification or contribution provision may
be limited under the federal and state securities laws, and (z) that the remedy of specific performance and injunctive and other forms
of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor
may be brought. 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 for such defaults that would not reasonably be
expected to result in a Material Adverse Change (as defined in Section 2.5.1 below). To the best of the Company’s knowledge, performance
by the Company of the material provisions of such agreements or instruments will not result in a violation of any existing applicable
law, rule, regulation, judgment, order or decree of any governmental agency or court, domestic or foreign, having jurisdiction over the
Company or any of its assets or businesses (each, a “Governmental Entity”), including, without limitation, those relating
to environmental laws and regulations.
2.4.3.
Prior Securities Transactions. During the period starting two (2) years prior to the date of this Agreement, no securities of
the Company have been sold by the Company or by or on behalf of, or for the benefit of, any person or persons controlling, controlled
by or under common control with the Company, except as disclosed in the Registration Statement, the Pricing Disclosure Package and the
Preliminary Prospectus.
2.4.4.
Regulations. The disclosures in the Registration Statement, the Pricing Disclosure Package and the Prospectus concerning the effects
of federal, state, local and all foreign regulation on the Offering and the Company’s business as currently contemplated are correct
in all material respects and no other such regulations are required to be disclosed in the Registration Statement, the Pricing Disclosure
Package and the Prospectus which are not so disclosed.
2.5
Changes After Dates in Registration Statement.
2.5.1.
No Material Adverse Change. Since the respective dates as of which information is given in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, except as otherwise specifically stated therein: (i) there has been no material adverse change
in the financial position or results of operations of the Company, nor any change or development that, singularly or in the aggregate,
would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise),
results of operations, business, assets or prospects of the Company (a “Material Adverse Change”); (ii) other than in the
ordinary course of business, 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.
2.5.2.
Recent Securities Transactions, etc. Subsequent to the respective dates as of which information is given in the Registration Statement,
the Pricing Disclosure Package and the Prospectus, and except as may otherwise be indicated or contemplated herein or disclosed in the
Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company has not: (i) issued any securities or incurred
any liability or obligation, direct or contingent, for borrowed money; or (ii) declared or paid any dividend or made any other distribution
on or in respect to its capital stock.
2.6
Independent Accountants. To the knowledge of the Company, WithumSmith+Brown, PC (the “Auditor”), whose report is filed
with the Commission as part of the Registration Statement, the Pricing Disclosure Package and the Prospectus, is an independent registered
public accounting firm as required by the Securities Act and the Securities Act Regulations and the Public Company Accounting Oversight
Board. The Auditor has not, during the periods covered by the financial statements included in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, provided to the Company any non-audit services, as such term is used in Section 10A(g) of the
Exchange Act.
2.7
Financial Statements, etc. The financial statements, including the notes thereto and supporting schedules included in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, fairly present the financial position and the results of operations of
the Company at the dates and for the periods to which they apply; and such financial statements have been prepared in conformity with
U.S. generally accepted accounting principles (“GAAP”), consistently applied throughout the periods involved (provided that
unaudited interim financial statements are subject to year-end audit adjustments that are not expected to be material in the aggregate
and do not contain all footnotes required by GAAP); and the supporting schedules included in the Registration Statement present fairly
the information required to be stated therein. Except as included therein, no historical or pro forma financial statements are required
to be included in the Registration Statement, the Pricing Disclosure Package or the Prospectus under the Securities Act or the Securities
Act Regulations. The pro forma and pro forma as adjusted financial information and the related notes, if any, included in the Registration
Statement, the Pricing Disclosure Package and the Prospectus have been properly compiled and prepared in accordance with the applicable
requirements of the Securities Act and the Securities Act Regulations and present fairly the information shown therein, and the assumptions
used in the preparation thereof are reasonable and the adjustments used therein are appropriate to give effect to the transactions and
circumstances referred to therein. All disclosures contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus
regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission), if any,
comply with Regulation G of the Exchange Act and Item 10 of Regulation S-K of the Securities Act, to the extent applicable. Each of the
Registration Statement, the Pricing Disclosure Package and the Prospectus discloses all material off-balance sheet transactions, arrangements,
obligations (including contingent obligations), and other relationships of the Company with unconsolidated entities or other persons
that may have a material current or future effect on the Company’s financial condition, changes in financial condition, results
of operations, liquidity, capital expenditures, capital resources, or significant components of revenues or expenses. Except as disclosed
in the Registration Statement, the Pricing Disclosure Package and the Prospectus, (a) neither the Company nor any of its direct and indirect
subsidiaries, including each entity disclosed or described in the Registration Statement, the Pricing Disclosure Package and the Prospectus
as being a subsidiary of the Company (each, a “Subsidiary” and, collectively, the “Subsidiaries”), has incurred
any material liabilities or obligations, direct or contingent, or entered into any material transactions other than in the ordinary course
of business, (b) the Company has not declared or paid any dividends or made any distribution of any kind with respect to its capital
stock, (c) there has not been any change in the capital stock of the Company or any of its Subsidiaries, or, other than in the ordinary
course of business, any grants under any stock compensation plan, and (d) there has not been any material adverse change in the Company’s
long-term or short-term debt.
2.8
Authorized Capital; Options, etc. The Company had, at the date or dates indicated in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, the duly authorized, issued and outstanding capitalization as set forth therein. Based on the assumptions
stated in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company will have on the Closing Date the
adjusted stock capitalization set forth therein. Except as set forth in, or contemplated by, the Registration Statement, the Pricing
Disclosure Package and the Prospectus, on the Effective Date, as of the Applicable Time and on the Closing Date, there will be no stock
options, warrants, or other rights to purchase or otherwise acquire any authorized, but unissued shares of Common Stock of the Company
or any security convertible or exercisable into shares of Common Stock of the Company, or any contracts or commitments to issue or sell
shares of Common Stock or any such options, warrants, rights or convertible securities.
2.9
Valid Issuance of Securities, etc.
2.9.1.
Outstanding Securities. All issued and outstanding securities of the Company issued prior to the transactions contemplated by
this Agreement have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights
of rescission with respect thereto, and are not subject to personal liability by reason of being such holders; and none of such securities
were issued in violation of the preemptive rights of any holders of any security of the Company or similar contractual rights granted
by the Company. The authorized shares of Common Stock conform in all material respects to all statements relating thereto contained in
the Registration Statement, the Pricing Disclosure Package and the Prospectus. The offers and sales of the outstanding shares of Common
Stock were at all relevant times either registered under the Securities Act and the applicable state securities or “blue sky”
laws or, based in part on the representations and warranties of the purchasers of such shares, exempt from such registration requirements.
2.9.2.
Securities Sold Pursuant to this Agreement. The Public Securities have been duly authorized for issuance and sale and, when issued
and paid for, will be validly issued, fully paid and non-assessable; the holders thereof are not and will not be subject to personal
liability by reason of being such holders; the Public Securities are not and will not be subject to the preemptive rights of any holders
of any security of the Company or similar contractual rights granted by the Company; and all corporate action required to be taken for
the authorization, issuance and sale of the Public Securities has been duly and validly taken. The Public Securities conform in all material
respects to all statements with respect thereto contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
2.10
Registration Rights of Third Parties. Except as set forth in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, no holders of any securities of the Company or any rights exercisable for or convertible or exchangeable into securities
of the Company have the right to require the Company to register any such securities of the Company under the Securities Act or to include
any such securities in a registration statement to be filed by the Company.
2.11
Validity and Binding Effect of Agreements. This Agreement have been duly and validly authorized by the Company, and, when executed
and delivered, will constitute, the valid and binding agreements of the Company, enforceable against the Company in accordance with their
respective terms, except: (i) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting
creditors’ rights generally; (ii) as enforceability of any indemnification or contribution provision may be limited under the federal
and state securities laws; and (iii) that the remedy of specific performance and injunctive and other forms of equitable relief may be
subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
2.12
No Conflicts, etc. The execution, delivery and performance by the Company of this Agreement and all ancillary documents, the consummation
by the Company of the transactions herein and therein contemplated and the compliance by the Company with the terms hereof and thereof
do not and will not, with or without the giving of notice or the lapse of time or both: (i) result in a material breach of, or conflict
with any of the terms and provisions of, or constitute a material default under, or result in the creation, modification, termination
or imposition of any lien, charge or encumbrance upon any property or assets of the Company pursuant to the terms of any agreement or
instrument to which the Company is a party; (ii) result in any violation of the provisions of the Company’s Articles of Incorporation
(as the same may be amended or restated from time to time) or the by-laws (as the same may be amended or restated from time to time,
together with the Articles of Incorporation, the “Charter”) of the Company; or (iii) violate any existing applicable law,
rule, regulation, judgment, order or decree of any Governmental Entity as of the date hereof except in the case of clauses (i) and (iii)
for any such breach, conflict, violation, default, lien, charge or encumbrance that would not reasonably be expected to result in, individually
or in the aggregate, a Material Adverse Change.
2.13
No Defaults; Violations. No material default exists in the due performance and observance of any term, covenant or condition of
any material license, contract, indenture, mortgage, deed of trust, note, loan or credit agreement, or any other agreement or instrument
evidencing an obligation for borrowed money, or any other material agreement or instrument to which the Company is a party or by which
the Company may be bound or to which any of the properties or assets of the Company is subject. The Company is not (i) in violation of
any term or provision of its Charter, (ii) in violation of any franchise, license or permit, or (iii) in violation of applicable law,
rule, regulation, judgment or decree of any Governmental Entity except in the case of clause (ii) and (iii) for any such violation that
would not reasonably be expected to result in, individually or in the aggregate, a Material Adverse Change.
2.14
Corporate Power; Licenses; Consents.
2.14.1.
Conduct of Business. Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the
Company has all requisite corporate power and authority, and has all necessary material authorizations, approvals, orders, licenses,
certificates and permits of and from all governmental regulatory officials and bodies that it needs as of the date hereof to conduct
its business as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
2.14.2.
Transactions Contemplated Herein. The Company has all corporate power and authority to enter into this Agreement and to carry
out the provisions and conditions hereof, and all consents, authorizations, approvals and orders required in connection therewith have
been obtained. No consent, authorization or order of, and no filing with, any court, government agency or other body is required for
the valid issuance, sale and delivery of the Public Securities and the consummation of the transactions and agreements contemplated by
this Agreement as contemplated by the Registration Statement, the Pricing Disclosure Package and the Prospectus, except (i) such consents,
approvals, authorizations, orders, filings, registrations or qualifications that have already been obtained or made and (ii) with respect
to applicable federal and state securities laws and the rules and regulations of the Financial Industry Regulatory Authority, Inc. (“FINRA”).
2.15
D&O Questionnaires. To the Company’s knowledge, all information contained in the questionnaires (the “Questionnaires”)
completed by each of the Company’s directors and officers immediately prior to the Offering (the “Insiders”) as supplemented
by all information concerning the Company’s directors, officers and principal stockholders as described in the Registration Statement,
the Pricing Disclosure Package and the Prospectus, as well as in the Lock-Up Agreement (as defined in Section 2.24 below), provided to
the Underwriters, is true and correct in all material respects and the Company has not become aware of any information which would cause
the information disclosed in the Questionnaires to become materially inaccurate and incorrect.
2.16
Litigation; Governmental Proceedings. There is no action, suit, proceeding, inquiry, arbitration, investigation, litigation or
governmental proceeding pending or, to the Company’s knowledge, threatened against, or involving the Company or, to the Company’s
knowledge, any executive officer or director which has not been disclosed in the Registration Statement, the Pricing Disclosure Package
and the Prospectus or in connection with the Company’s listing application for the listing of the Public Securities on the Exchange,
except as would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the Company.
2.17
Good Standing. The Company has been duly incorporated and is validly existing as a corporation and is in good standing under the
laws of the State of Nevada as of the date hereof, and is in good standing in each other jurisdiction in which its ownership or lease
of property or the conduct of business requires such qualification, except where the failure to be so qualified, singularly or in the
aggregate, would not reasonably be expected to result in a Material Adverse Change.
2.18
Insurance. The Company carries or is entitled to the benefits of insurance, with, to the Company’s knowledge, reputable
insurers, in such amounts and covering such risks which the Company believes are adequate, including, but not limited to, directors and
officers insurance coverage at least equal to $3,000,000 and the Company has included each Underwriter as an additional insured party
to the directors and officers insurance coverage and all such insurance is in full force and effect. The Company has no reason to believe
that it will not be able (i) to renew its existing insurance coverage as and when such policies expire or (ii) to obtain comparable coverage
from similar institutions as may be necessary or appropriate to conduct its business as now conducted and at a cost that would not reasonably
be expected to result in a Material Adverse Change.
2.19
Transactions Affecting Disclosure to FINRA.
2.19.1.
Finder’s Fees. Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, there
are no claims, payments, arrangements, agreements or understandings relating to the payment of a finder’s, consulting or origination
fee by the Company or any Insider with respect to the sale of the Public Securities hereunder or any other arrangements, agreements or
understandings of the Company or, to the Company’s knowledge, any of its stockholders that may affect the Underwriters’ compensation,
as determined by FINRA.
2.19.2.
Payments Within Twelve (12) Months. Except as described in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, the Company has not made any direct or indirect payments (in cash, securities or otherwise) to: (i) any person, as a finder’s
fee, consulting fee or otherwise, in consideration of such person raising capital for the Company or introducing to the Company persons
who raised or provided capital to the Company; (ii) any FINRA member; or (iii) any person or entity that has any direct or indirect affiliation
or association with any FINRA member, within the twelve (12) months prior to the Effective Date, other than the payment to the Underwriters
as provided hereunder in connection with the Offering.
2.19.3.
Use of Proceeds. None of the net proceeds of the Offering will be paid by the Company to any participating FINRA member or its
affiliates, except as specifically authorized herein.
2.19.4.
FINRA Affiliation. Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, to the
Company’s knowledge, there is no (i) officer or director of the Company, (ii) beneficial owner of 5% or more of any class of the
Company’s securities or (iii) beneficial owner of the Company’s unregistered equity securities which were acquired during
the 180-day period immediately preceding the filing of the Registration Statement, that is an affiliate or associated person of a FINRA
member participating in the Offering (as determined in accordance with the rules and regulations of FINRA).
2.19.5.
Information. To the Company’s knowledge, all information provided by the Company in its FINRA questionnaire to Representative
Counsel specifically for use by Representative Counsel in connection with its Public Offering System filings (and related disclosure)
with FINRA is true, correct and complete in all material respects.
2.20
Foreign Corrupt Practices Act. None of the Company and its Subsidiaries or, to the Company’s knowledge, any director, officer,
agent, employee or affiliate of the Company and its Subsidiaries or any other person acting on behalf of the Company and its Subsidiaries,
has, directly or indirectly, given or agreed to give any money, gift or similar benefit (other than legal price concessions to customers
in the ordinary course of business) to any customer, supplier, employee or agent of a customer or supplier, or official or employee of
any governmental agency or instrumentality of any government (domestic or foreign) or any political party or candidate for office (domestic
or foreign) or other person who was, is, or may be in a position to help or hinder the business of the Company (or assist it in connection
with any actual or proposed transaction) that (i) might subject the Company to any damage or penalty in any civil, criminal or governmental
litigation or proceeding, (ii) if not given in the past, might have had a Material Adverse Change or (iii) if not continued in the future,
might adversely affect the assets, business, operations or prospects of the Company. The Company has taken reasonable steps to ensure
that its accounting controls and procedures are sufficient to cause the Company to comply in all material respects with the Foreign Corrupt
Practices Act of 1977, as amended.
2.21
Compliance with OFAC. None of the Company and its Subsidiaries or, to the Company’s knowledge, any director, officer, agent,
employee or affiliate of the Company and its Subsidiaries or any other person acting on behalf of the Company and its Subsidiaries, is
currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”),
and the Company will not, directly or indirectly, use the proceeds of the Offering hereunder, or lend, contribute or otherwise make available
such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any
person currently subject to any U.S. sanctions administered by OFAC.
2.22
Money Laundering Laws. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance
with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar
rules, regulations or guidelines, issued, administered or enforced by any Governmental Entity (collectively, the “Money Laundering
Laws”); and no action, suit or proceeding by or before any Governmental Entity involving the Company with respect to the Money
Laundering Laws is pending or, to the best knowledge of the Company, threatened.
2.23
Officers’ Certificate. Any certificate signed by any duly authorized officer of the Company and delivered to you or to Representative
Counsel shall be deemed a representation and warranty by the Company to the Underwriters as to the matters covered thereby.
2.24
Lock-Up Agreements. Schedule 3 hereto contains a complete and accurate list of the Company’s officers, directors
and five percent (5%) or more of holders of record of the Company’s outstanding shares of Common Stock (or securities convertible
or exercisable into shares of Common Stock) (collectively, the “Lock-Up Parties”). The Company has caused each of the Lock-Up
Parties to deliver to the Representative an executed Lock-Up Agreement, in the form attached hereto as Exhibit A (the “Lock-Up
Agreement”), prior to the execution of this Agreement.
2.25
Related Party Transactions. There are no business relationships or related party transactions involving the Company or any other
person required to be described in the Registration Statement, the Pricing Disclosure Package and the Prospectus that have not been described
as required.
2.26
Board of Directors. The Board of Directors of the Company is comprised of the persons set forth under the heading of the Pricing
Prospectus and the Prospectus captioned “Management.” The qualifications of the persons serving as board members and the
overall composition of the board comply with the Exchange Act, the Exchange Act Regulations, the Sarbanes-Oxley Act of 2002 and the rules
promulgated thereunder (the “Sarbanes-Oxley Act”) applicable to the Company and the listing rules of the Exchange. At least
one member of the Audit Committee of the Board of Directors of the Company qualifies as an “audit committee financial expert,”
as such term is defined under Regulation S-K and the listing rules of the Exchange. In addition, at least a majority of the persons serving
on the Board of Directors qualify as “independent,” as defined under the listing rules of the Exchange.
2.27
Sarbanes-Oxley Compliance.
2.27.1.
Disclosure Controls. The Company has taken all necessary actions to ensure that, in the time periods required, the Company will
comply with Rule 13a-15 or 15d-15 under the Exchange Act Regulations, and such controls and procedures are effective to ensure that all
material information concerning the Company will be made known on a timely basis to the individuals responsible for the preparation of
the Company’s Exchange Act filings and other public disclosure documents.
2.27.2.
Compliance. The Company is, or at the Applicable Time and on the Closing Date will be, in material compliance with the provisions
of the Sarbanes-Oxley Act applicable to it, and has implemented or will implement such programs and taken reasonable steps to ensure
the Company’s future compliance (not later than the relevant statutory and regulatory deadlines therefor) with all of the material
provisions of the Sarbanes-Oxley Act then applicable to it.
2.28
Accounting Controls. The Company and its Subsidiaries maintain systems of “internal control over financial reporting”
(as defined under Rules 13a-15 and 15d-15 under the Exchange Act Regulations) that comply in all material respect with the requirements
of the Exchange Act and have been designed by, or under the supervision of, their respective principal executive and principal financial
officers, or persons performing similar functions, to provide reasonable assurance regarding the reliability of financial reporting and
the preparation of financial statements for external purposes in accordance with GAAP, including, but not limited to, internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general
or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with
GAAP and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or
specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences. Except as disclosed in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, the Company is not aware of any material weaknesses in its internal controls. To the Company’s knowledge,
the Company’s auditors and the Audit Committee of the Board of Directors of the Company have been advised of: (i) all significant
deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which are known to the
Company’s management and that have adversely affected or are reasonably likely to adversely affect the Company’s ability
to record, process, summarize and report financial information; and (ii) any fraud known to the Company’s management, whether or
not material, that involves management or other employees who have a significant role in the Company’s internal controls over financial
reporting. Notwithstanding any provision above, nothing in this Agreement requires the Company to comply with Section 404 of the Sarbanes-Oxley
Act and the rules and regulations promulgated in connection therewith as of an earlier date than it would otherwise be required to do
so under applicable law.
2.29
No Investment Company Status. The Company is not and, after giving effect to the Offering and the application of the proceeds
thereof as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, will not be, required to register
as an “investment company,” as defined in the Investment Company Act of 1940, as amended.
2.30
No Labor Disputes. No labor dispute with the employees of the Company or any of its Subsidiaries exists or, to the knowledge of
the Company, is imminent.
2.31
Intellectual Property Rights. The Company and each of its Subsidiaries owns or possesses or has valid rights to use all patents,
patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses,
inventions, trade secrets and similar rights (“Intellectual Property Rights”) necessary for the conduct of the business of
the Company and its Subsidiaries as currently carried on and as described in the Registration Statement, the Pricing Disclosure Package
and the Prospectus. To the knowledge of the Company, no action or use by the Company or any of its Subsidiaries necessary for the conduct
of its business as currently carried on and as described in the Registration Statement and the Prospectus will involve or give rise to
any infringement of, or license or similar fees for, any Intellectual Property Rights of others, except as described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus. Neither the Company nor any of its Subsidiaries has received any notice
alleging any such infringement, fee or conflict with asserted Intellectual Property Rights of others. Except as would not reasonably
be expected to result, individually or in the aggregate, in a Material Adverse Change (A) to the knowledge of the Company, there is no
infringement, misappropriation or violation by third parties of any of the Intellectual Property Rights owned by the Company; (B) there
is no pending or, to the knowledge of the Company, threatened action, suit, proceeding or claim by others challenging the rights of the
Company in or to any such Intellectual Property Rights, and the Company is unaware of any facts which would form a reasonable basis for
any such claim, that would, individually or in the aggregate, together with any other claims in this Section 2.32, reasonably be expected
to result in a Material Adverse Change; (C) the Intellectual Property Rights owned by the Company and, to the knowledge of the Company,
the Intellectual Property Rights licensed to the Company have not been adjudged by a court of competent jurisdiction invalid or unenforceable,
in whole or in part, and there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others
challenging the validity or scope of any such Intellectual Property Rights, and the Company is unaware of any facts which would form
a reasonable basis for any such claim that would, individually or in the aggregate, together with any other claims in this Section 2.32,
reasonably be expected to result in a Material Adverse Change; (D) there is no pending or, to the Company’s knowledge, threatened
action, suit, proceeding or claim by others that the Company infringes, misappropriates or otherwise violates any Intellectual Property
Rights or other proprietary rights of others, the Company has not received any written notice of such claim and the Company is unaware
of any other facts which would form a reasonable basis for any such claim that would, individually or in the aggregate, together with
any other claims in this Section 2.32, reasonably be expected to result in a Material Adverse Change; and (E) to the Company’s
knowledge, no employee of the Company is in or has ever been in violation in any material respect of any term of any employment contract,
patent disclosure agreement, invention assignment agreement, non-competition agreement, non-solicitation agreement, nondisclosure agreement
or any restrictive covenant to or with a former employer where the basis of such violation relates to such employee’s employment
with the Company, or actions undertaken by the employee while employed with the Company and could reasonably be expected to result, individually
or in the aggregate, in a Material Adverse Change. To the Company’s knowledge, all material technical information developed by
and belonging to the Company which has not been patented has been kept confidential. The Company is not a party to or bound by any options,
licenses or agreements with respect to the Intellectual Property Rights of any other person or entity that are required to be set forth
in the Registration Statement, the Pricing Disclosure Package and the Prospectus and are not described therein. The Registration Statement,
the Pricing Disclosure Package and the Prospectus contain in all material respects the same description of the matters set forth in the
preceding sentence. None of the technology employed by the Company has been obtained or is being used by the Company in violation of
any contractual obligation binding on the Company or, to the Company’s knowledge, any of its officers, directors or employees,
or otherwise in violation of the rights of any persons.
2.32
Taxes. Except as would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the
Company, each of the Company and its Subsidiaries has (i) filed all returns (as hereinafter defined) required to be filed with taxing
authorities prior to the date hereof or has duly obtained extensions of time for the filing thereof and (ii) has paid all taxes (as hereinafter
defined) shown as due on such returns that were filed and has paid all taxes imposed on or assessed against the Company or such respective
Subsidiary except as currently being contested in good faith and for which reserves required by GAAP have been created in the financial
statements of the Company. The provisions for taxes payable, if any, shown on the financial statements filed with or as part of the Registration
Statement are sufficient for all accrued and unpaid taxes, whether or not disputed, and for all periods to and including the dates of
such consolidated financial statements. Except as disclosed in writing to the Underwriters, (i) no issues have been raised (and are currently
pending) by any taxing authority in connection with any of the returns or taxes asserted as due from the Company or its Subsidiaries,
and (ii) no waivers of statutes of limitation with respect to the returns or collection of taxes have been given by or requested from
the Company or its Subsidiaries. The term “taxes” means all federal, state, local, foreign and other net income, gross income,
gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment,
excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments or charges
of any kind whatever, together with any interest and any penalties, additions to tax or additional amounts with respect thereto. The
term “returns” means all returns, declarations, reports, statements and other documents required to be filed in respect to
taxes.
2.33
ERISA Compliance. The Company and any “employee benefit plan” (as defined under the Employee Retirement Income Security
Act of 1974, as amended, and the regulations and published interpretations thereunder (collectively, “ERISA”)) established
or maintained by the Company or its “ERISA Affiliates” (as defined below) are in compliance in all material respects with
ERISA. “ERISA Affiliate” means, with respect to the Company, any member of any group of organizations described in Sections
414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended, and the regulations and published interpretations thereunder
(the “Code”) of which the Company is a member. No “reportable event” (as defined under ERISA) has occurred or
is reasonably expected to occur with respect to any “employee benefit plan” established or maintained by the Company or any
of its ERISA Affiliates. No “employee benefit plan” established or maintained by the Company or any of its ERISA Affiliates,
if such “employee benefit plan” were terminated, would have any “amount of unfunded benefit liabilities” (as
defined under ERISA). Neither the Company nor any of its ERISA Affiliates has incurred or reasonably expects to incur any material liability
under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any “employee benefit plan” or (ii) Sections
412, 4971, 4975 or 4980B of the Code. Each “employee benefit plan” established or maintained by the Company or any of its
ERISA Affiliates that is intended to be qualified under Section 401(a) of the Code is so qualified and, to the knowledge of the Company,
nothing has occurred, whether by action or failure to act, which would cause the loss of such qualification.
2.34
Compliance with Laws. The Company: (A) is and at all times has been in compliance with all statutes, rules, or regulations applicable
to the ownership, testing, development, manufacture, packaging, processing, use, distribution, marketing, labeling, promotion, sale,
offer for sale, storage, import, export or disposal of any product manufactured or distributed by the Company, including all regulations,
licenses, and approvals relating to the design, construction, and operation of nuclear plants (“Applicable Laws”), except
as could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Change; (B) has not received any
warning letter, untitled letter or other correspondence or notice from any other governmental authority alleging or asserting noncompliance
with any Applicable Laws or any licenses, certificates, approvals, clearances, authorizations, permits and supplements or amendments
thereto required by any such Applicable Laws (“Authorizations”); (C) possesses all material Authorizations and such Authorizations
are valid and in full force and effect and are not in material violation of any term of any such Authorizations; (D) has not received
notice of any claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action from any governmental
authority or third party alleging that any product, operation or activity is in violation of any Applicable Laws or Authorizations and
has no knowledge that any such governmental authority or third party is considering any such claim, litigation, arbitration, action,
suit, investigation or proceeding that if brought, would result in a material adverse effect; (E) has not received notice that any governmental
authority has taken, is taking or intends to take action to limit, suspend, modify or revoke any Authorizations and has no knowledge
that any such governmental authority is considering such action; and (F) has filed, obtained, maintained or submitted all material reports,
documents, forms, notices, applications, records, claims, submissions and supplements or amendments as required by any Applicable Laws
or Authorizations and that all such reports, documents, forms, notices, applications, records, claims, submissions and supplements or
amendments were complete and correct on the date filed (or were corrected or supplemented by a subsequent submission).
2.35
Ineligible Issuer. At the time of filing the Registration Statement and any post-effective amendment thereto, at the time of effectiveness
of the Registration Statement and any amendment thereto, at the earliest time thereafter that the Company or another offering participant
made a bona fide offer (within the meaning of Rule 164(h)(2) of the Securities Act Regulations) of the Public Securities and at the date
hereof, the Company was not and is not an “ineligible issuer,” as defined in Rule 405, without taking account of any determination
by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an ineligible issuer.
2.36
Real Property. Except as set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company
and its Subsidiaries have good and marketable title in fee simple to, or have valid rights to lease or otherwise use, all items of real
or personal property which are material to the business of the Company and its Subsidiaries taken as a whole, in each case free and clear
of all liens, encumbrances, security interests, claims and defects that do not, singly or in the aggregate, materially affect the value
of such property and do not interfere with the use made and proposed to be made of such property by the Company or its Subsidiaries;
and all of the leases and subleases material to the business of the Company and its subsidiaries, considered as one enterprise, and under
which the Company or any of its Subsidiaries holds properties described in the Registration Statement, the Pricing Disclosure Package
and the Prospectus, are in full force and effect, and neither the Company nor any Subsidiary has received any notice of any material
claim of any sort that has been asserted by anyone adverse to the rights of the Company or any Subsidiary under any of the leases or
subleases mentioned above, or affecting or questioning the rights of the Company or such Subsidiary to the continued possession of the
leased or subleased premises under any such lease or sublease.
2.37
Contracts Affecting Capital. There are no transactions, arrangements or other relationships between and/or among the Company,
any of its affiliates (as such term is defined in Rule 405 of the Securities Act Regulations) and any unconsolidated entity, including,
but not limited to, any structured finance, special purpose or limited purpose entity that could reasonably be expected to materially
affect the Company’s or its Subsidiaries’ liquidity or the availability of or requirements for their capital resources required
to be described in the Registration Statement, the Pricing Disclosure Package and the Prospectus which have not been described as required.
2.38
Loans to Directors or Officers. There are no outstanding loans, advances (except normal advances for business expenses in the
ordinary course of business) or guarantees or indebtedness by the Company or its Subsidiaries to or for the benefit of any of the officers
or directors of the Company, its Subsidiaries or any of their respective family members, except as disclosed in the Registration Statement,
the Pricing Disclosure Package and the Prospectus.
2.39
Smaller Reporting Company. As of the time of filing of the Registration Statement, the Company was a “smaller reporting
company,” as defined in Rule 12b-2 of the Exchange Act Regulations.
2.40
Industry Data. The statistical and market-related data included in each of the Registration Statement, the Pricing Disclosure
Package and the Prospectus are based on or derived from sources that the Company reasonably and in good faith believes are reliable and
accurate or represent the Company’s good faith estimates that are made on the basis of data derived from such sources.
2.41
[Reserved]
2.42
Testing-the-Waters Communications. The Company has not (i) alone engaged in any Testing-the-Waters Communications, other than
Testing-the-Waters Communications with the written consent of the Representative and with entities that are qualified institutional buyers
within the meaning of Rule 144A under the Securities Act or institutions that are accredited investors within the meaning of Rule 501
under the Securities Act and (ii) authorized anyone other than the Representative to engage in Testing-the-Waters Communications. The
Company confirms that the Representative has been authorized to act on its behalf in undertaking Testing-the-Waters Communications. The
Company has not distributed any Written Testing-the-Waters Communications other than those listed on Schedule 2-C hereto. “Written
Testing-the-Waters Communication” means any Testing-the-Waters Communication that is a written communication within the meaning
of Rule 405 under the Securities Act. “Testing-the-Waters Communication” means any oral or written communication with potential
investors undertaken in reliance on Rule 163B of the Securities Act.
2.43
Electronic Road Show. The Company has made available a Bona Fide Electronic Road Show in compliance with Rule 433(d)(8)(ii) of
the Securities Act Regulations such that no filing of any “road show” (as defined in Rule 433(h) of the Securities Act Regulations)
is required in connection with the Offering unless such filing has been made.
2.44
Margin Securities. The Company owns no “margin securities” as that term is defined in Regulation U of the Board of
Governors of the Federal Reserve System (the “Federal Reserve Board”), and none of the proceeds of Offering will be used,
directly or indirectly, for the purpose of purchasing or carrying any margin security, for the purpose of reducing or retiring any indebtedness
which was originally incurred to purchase or carry any margin security or for any other purpose which might cause any of the shares of
Common Stock to be considered a “purpose credit” within the meanings of Regulation T, U or X of the Federal Reserve Board.
2.45
Regulatory Filings. Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, neither
the Company nor any of its Subsidiaries has failed to file with the applicable Governmental Authority any required filing, declaration,
listing, registration, report or submission, except for such failures that, individually or in the aggregate, would not reasonably be
expected to result in a Material Adverse Change; except as disclosed in the Registration Statement, the Pricing Disclosure Package and
the Prospectus, all such filings, declarations, listings, registrations, reports or submissions were in material compliance with applicable
laws when filed and no deficiencies have been asserted by any applicable regulatory authority with respect to any such filings, declarations,
listings, registrations, reports or submissions, except for any deficiencies that, individually or in the aggregate, would not result
in a Material Adverse Change.
2.46
Environmental Laws. Except as set forth in the Registration Statement, the Pricing Disclosure Package or the Prospectus, the Company
and its Subsidiaries (i) are in compliance with any and all applicable federal, state, local and foreign laws, rules, regulations, decisions
and orders relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants
or contaminants (collectively, “Environmental Laws “); (ii) have received and are in compliance with all permits, licenses
or other approvals required of them under applicable Environmental Laws to conduct its business as described in the Registration Statement,
the Pricing Disclosure Package or the Prospectus; and (iii) have not received notice of any actual or potential liability for the investigation
or remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants, except, in the case
of any of clauses (i), (ii) or (iii) above, for any such failure to comply or failure to receive required permits, licenses, other approvals
or liability as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Change.
2.47
Cybersecurity. The Company and its Subsidiaries’ information technology assets and equipment, computers, systems, networks,
hardware, software, websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate and
perform in all material respects as required in connection with the operation of the business of the Company and its Subsidiaries as
currently conducted, and, to the knowledge of the Company, free and clear of all material bugs, errors, defects, Trojan horses, time
bombs, malware and other corruptants. The Company and its Subsidiaries have implemented commercially reasonable physical, technical and
administrative controls, policies, procedures, and safeguards to maintain and protect their material confidential information and the
integrity, continuous operation, redundancy and security of all IT Systems and data, including “Personal Data,” used in connection
with their businesses. “Personal Data” means (i) a natural person’s name, street address, telephone number, e-mail
address, photograph, social security number or tax identification number, driver’s license number, passport number, credit card
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; (iv) any information which
would qualify as “protected health information” under the Health Insurance Portability and Accountability Act of 1996, as
amended by the Health Information Technology for Economic and Clinical Health Act (collectively, “HIPAA”); and (v) 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 data related to an identified person’s health or sexual orientation. Except as disclosed in the Registration Statement,
the Pricing Disclosure Package or the Prospectus, there have been no material breaches, violations, outages or unauthorized uses of or
accesses to same, except for those that have been remedied without material cost or liability or the duty to notify any other person,
nor any incidents under internal review or investigations relating to the same. The Company and its Subsidiaries are presently in material
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 Personal
Data and to the protection of such IT Systems and Personal Data from unauthorized use, access, misappropriation or modification.
2.48
Compliance with Data Privacy Laws. The Company and its Subsidiaries are, and at all prior times were, in material compliance with
all applicable state and federal data privacy and security laws and regulations, including, without limitation, HIPAA, and the Company
and its Subsidiaries are in compliance with the European Union General Data Protection Regulation (“GDPR”) (EU 2016/679)
as applicable (collectively, the “Privacy Laws”). To ensure compliance with the Privacy Laws, the Company and its Subsidiaries
have in place, comply with, and take appropriate steps reasonably designed to ensure compliance in all material respects with their policies
and procedures relating to data privacy and security and the collection, storage, use, disclosure, handling, and analysis of Personal
Data (the “Policies”). The Company and its Subsidiaries have, to the knowledge of the Company, at all times made all disclosures
to users or customers required by applicable laws and regulatory rules or requirements, and none of such disclosures made or contained
in any Policy have, to the knowledge of the Company, been inaccurate or in violation of any applicable laws and regulatory rules or requirements
in any material respect. The Company further certifies that neither it nor any Subsidiary: (i) has received notice of any actual or potential
liability under or relating to, or actual or potential violation of, any of the Privacy Laws, and has no knowledge of any event or condition
that would reasonably be expected to result in any such notice; (ii) is currently conducting or paying for, in whole or in part, any
investigation, remediation, or other corrective action pursuant to any Privacy Law; or (iii) is a party to any order, decree, or agreement
that imposes any obligation or liability under any Privacy Law.
3.
Covenants of the Company. The Company covenants and agrees as follows:
3.1
Amendments to Registration Statement. The Company shall deliver to the Representative, prior to filing, any amendment or supplement
to the Registration Statement or Prospectus proposed to be filed after the Effective Date and not file any such amendment or supplement
to which the Representative shall reasonably object in writing.
3.2
Federal Securities Laws.
3.2.1.
Compliance. The Company, subject to Section 3.2.2, shall comply with the requirements of Rule 430A of the Securities Act Regulations,
and will, during the period required to permit the completion of the distribution of the Public Securities as contemplated in this Agreement
and in the Registration Statement, the Pricing Disclosure Package and the Prospectus, notify the Representative promptly, and confirm
the notice in writing, (i) when any post-effective amendment to the Registration Statement shall become effective or any amendment or
supplement to the Prospectus shall have been filed; (ii) of the receipt of any comments from the Commission; (iii) of any request by
the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information;
(iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective
amendment or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the
qualification of the Public Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings
for any of such purposes or of any examination pursuant to Section 8(d) or 8(e) of the Securities Act concerning the Registration Statement;
and (v) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the Offering of
the Public Securities. The Company shall effect all filings required under Rule 424(b) of the Securities Act Regulations, in the manner
and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and shall take such steps as it deems necessary
to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission
and, in the event that it was not, it will promptly file such prospectus. The Company shall use its commercially reasonable efforts to
prevent the issuance of any stop order, prevention or suspension and, if any such order is issued, to obtain the lifting thereof at the
earliest possible moment.
3.2.2.
Continued Compliance. The Company shall comply with the Securities Act, the Securities Act Regulations, the Exchange Act and the
Exchange Act Regulations so as to permit the completion of the distribution of the Public Securities as contemplated in this Agreement
and in the Registration Statement, the Pricing Disclosure Package and the Prospectus. If at any time when a prospectus relating to the
Public Securities is (or, but for the exception afforded by Rule 172 of the Securities Act Regulations (“Rule 172”), would
be) required by the Securities Act to be delivered in connection with sales of the Public Securities, any event shall occur or condition
shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or for the Company, to (i) amend the
Registration Statement in order that the Registration Statement will not include an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) amend or supplement the
Pricing Disclosure Package or the Prospectus in order that the Pricing Disclosure Package or the Prospectus, as the case may be, will
not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein
not misleading in the light of the circumstances existing at the time it is delivered to a purchaser or (iii) amend the Registration
Statement or amend or supplement the Pricing Disclosure Package or the Prospectus, as the case may be, in order to comply with the requirements
of the Securities Act or the Securities Act Regulations, the Company will promptly (A) give the Representative notice of such event;
(B) prepare any amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement,
the Pricing Disclosure Package or the Prospectus comply with such requirements and, a reasonable amount of time prior to any proposed
filing or use, furnish the Representative with copies of any such amendment or supplement and (C) file with the Commission any such amendment
or supplement; provided that the Company shall not file or use any such amendment or supplement to which the Representative or counsel
for the Underwriters shall reasonably object. The Company will furnish to the Underwriters such number of copies of such amendment or
supplement as the Underwriters may reasonably request. The Company has given the Representative notice of any filings made pursuant to
the Exchange Act or the Exchange Act Regulations within 48 hours prior to the Applicable Time. The Company shall give the Representative
notice of its intention to make any such filing from the Applicable Time until the later of the Closing Date and will furnish the Representative
with copies of the related document(s) a reasonable amount of time prior to such proposed filing, as the case may be, and will not file
or use any such document to which the Representative or counsel for the Underwriters shall reasonably object.
3.2.3.
Exchange Act Registration. For a period of two (2) year after the date of this Agreement, the Company shall use its commercially
reasonable efforts to maintain the registration of the shares of Common Stock under the Exchange Act. During such two (2) year period,
the Company shall not deregister the shares of Common Stock under the Exchange Act without the prior written consent of the Representative.
3.2.4.
Free Writing Prospectuses. The Company agrees that, unless it obtains the prior written consent of the Representative, it shall
not make any offer relating to the Public Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise
constitute a “free writing prospectus,” or a portion thereof, required to be filed by the Company with the Commission or
retained by the Company under Rule 433; provided that the Representative shall be deemed to have consented to each Issuer General Use
Free Writing Prospectus hereto and any “road show that is a written communication” within the meaning of Rule 433(d)(8)(i)
that has been reviewed by the Representative. The Company represents that it has treated or agrees that it will treat each such free
writing prospectus consented to, or deemed consented to, by the Underwriters as an “issuer free writing prospectus,” as defined
in Rule 433, and that it has complied and will comply with the applicable requirements of Rule 433 with respect thereto, including timely
filing with the Commission where required, legending and record keeping. If at any time following issuance of an Issuer Free Writing
Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would
conflict with the information contained in the Registration Statement or included or would include an untrue statement of a material
fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
existing at that subsequent time, not misleading, the Company will promptly notify the Underwriters and will promptly amend or supplement,
at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
3.2.5.
Testing-the-Waters Communications. If at any time following the distribution of any Written Testing-the-Waters Communication there
occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include
an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances existing at that subsequent time, not misleading, the Company shall promptly notify the Representative
and shall promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such
untrue statement or omission.
3.3
Delivery to the Underwriters of Registration Statements. The Company has delivered or made available or shall deliver or make
available to the Representative and counsel for the Representative, upon request and without charge, signed copies of the Registration
Statement as originally filed and each amendment thereto (including exhibits filed therewith) and signed copies of all consents and certificates
of experts, and will also deliver to the Underwriters, without charge, a conformed copy of the Registration Statement as originally filed
and each amendment thereto (without exhibits) for each of the Underwriters, upon receipt of a written request therefor. The copies of
the Registration Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
3.4
Delivery to the Underwriters of Prospectuses. The Company has delivered or made available or will deliver or make available to
each Underwriter, without charge, as many copies of each Preliminary Prospectus as such Underwriter reasonably requested, and the Company
hereby consents to the use of such copies for purposes permitted by the Securities Act. The Company will furnish to each Underwriter,
without charge, during the period when a prospectus relating to the Public Securities is (or, but for the exception afforded by Rule
172, would be) required to be delivered under the Securities Act, such number of copies of the Prospectus (as amended or supplemented)
as such Underwriter may reasonably request. The Prospectus and any amendments or supplements thereto furnished to the Underwriters will
be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted
by Regulation S-T.
3.5
Effectiveness and Events Requiring Notice to the Representative. The Company shall notify the Representative immediately and confirm
the notice in writing: (i) of the effectiveness of the Registration Statement and any amendment thereto; (ii) of the issuance by the
Commission of any stop order or of the initiation, or the threatening, of any proceeding for that purpose; (iii) of the issuance by any
state securities commission of any proceedings for the suspension of the qualification of the Public Securities for offering or sale
in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose; (iv) of the mailing and delivery to
the Commission for filing of any amendment or supplement to the Registration Statement or Prospectus; and (v) of the receipt of any comments
or request for any additional information from the Commission. If the Commission or any state securities commission shall enter a stop
order or suspend such qualification at any time, the Company shall make every reasonable effort to obtain promptly the lifting of such
order.
3.6
Review of Financial Statements. For a period of two (2) years after the date of this Agreement, the Company, at its expense, shall
use its commercially reasonable efforts to cause its regularly engaged independent registered public accounting firm to review (but not
audit) the Company’s financial statements for each of the two (2) fiscal quarters immediately preceding the announcement of any
quarterly financial information.
3.7
Listing. The Company shall use its reasonable best efforts to maintain the listing of the shares of Common Stock (including the
Public Securities) on the Exchange for at least two (2) years from the date of this Agreement.
3.9
Reports to the Representative.
3.9.1.
Periodic Reports, etc. For a period of two (2) years after the date of this Agreement, the Company shall furnish or make available
to the Representative copies of such financial statements and other periodic and special reports as the Company from time to time furnishes
generally to holders of any class of its securities and also promptly furnish to the Representative: (i) a copy of each periodic report
the Company shall be required to file with the Commission under the Exchange Act and the Exchange Act Regulations; (ii) a copy of every
press release and every news item and article with respect to the Company or its affairs which was released by the Company; (iii) a copy
of each Form 8-K prepared and filed by the Company; (iv) a copy of each registration statement filed by the Company under the Securities
Act; and (v) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the
Company as the Representative may from time to time reasonably request; provided the Representative shall sign, if requested by the Company,
a Regulation FD compliant confidentiality agreement which is reasonably acceptable to the Representative and Representative Counsel in
connection with the Representative’s receipt of such information. Documents filed with the Commission pursuant to its EDGAR system
(or with respect to articles and press releases, posted on the Company’s website) shall be deemed to have been delivered to the
Representative pursuant to this Section 3.9.1.
3.9.2.
Transfer Agent; Transfer Sheets. For a period of one (1) year after the date of this Agreement, the Company shall retain a transfer
agent and registrar acceptable to the Representative (the “Transfer Agent”) and shall furnish to the Representative at the
Company’s sole cost and expense such transfer sheets of the Company’s securities as the Representative may reasonably request,
including the daily and monthly consolidated transfer sheets of the Transfer Agent and DTC. Vstock Transfer, LLC is acceptable to the
Representative to act as Transfer Agent for the shares of Common Stock.
3.9.3.
Trading Reports. During such time as the Public Securities are listed on the Exchange, the Company shall provide, if available
and upon the Representative’s request, to the Representative, at the Company’s expense, such reports published by the Exchange
relating to price trading of the Public Securities, as the Representative shall reasonably request. Documents made freely available by
the Exchange through its website shall be deemed to have been delivered to the Representative pursuant to this Section 3.9.3.
3.10
Payment of Expenses
3.10.1.
General Expenses Related to the Offering. The Company hereby agrees to pay on the Closing Date, all expenses incident to the performance
of the obligations of the Company under this Agreement, including, but not limited to: (a) all filing fees and communication expenses
relating to the registration of the shares of Common Stock to be sold in the Offering with the Commission; (b) all Public Filing System
filing fees associated with the review of the Offering by FINRA; (c) all fees and expenses relating to the listing of such Public Securities
on the Exchange and such other stock exchanges as the Company and the Representative together determine; (d) all fees, expenses and disbursements
relating to the registration or qualification of the Public Securities under the “blue sky” securities laws of such states
and other jurisdictions as the Representative may reasonably designate (including, without limitation, all filing and registration fees);
(e) all fees, expenses and disbursements relating to the registration, qualification or exemption of the Public Securities under the
securities laws of such foreign jurisdictions as the Representative may reasonably designate; (f) the costs of all mailing and printing
of the Registration Statements, Prospectuses and all amendments, supplements and exhibits thereto and as many preliminary and final Prospectuses
as the Representative may reasonably deem necessary; (g) the costs and expenses of the Company’s investor relations firm; (h) fees
and expenses of the transfer agent for the shares of Common Stock; (i) the fees and expenses of the Company’s accountants; (j)
the fees and expenses of the Company’s legal counsel and other agents and representatives; (k) fees and expenses of the Representative’s
legal counsel not to exceed $125,000; (l) the costs associated with the Underwriter’s use of Ipreo’s book-building, prospectus
tracking and compliance software for the Offering; and (m) the Underwriters’ actual accountable “road show” expenses.
The expenses to be paid by the Company and reimbursed to the Underwriters under this Section 3.10 shall not exceed $150,000. In addition,
the Company shall be responsible for all fees, expenses and disbursements relating to background checks of the Company’s officers
and directors in an amount not to exceed $7,500 in the aggregate. It is acknowledged that the Company has heretofore paid an expense
advance to the Representative of $25,000, which shall be credited towards the Company’s payment or reimbursement obligations under
this Section 3.10. The Representative 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 Underwriters.
3.10.2.
Non-accountable Expenses. The Company further agrees that, in addition to the expenses payable pursuant to Section 3.10.1, on
the Closing Date it shall pay to the Representative, by deduction from the net proceeds of the Offering contemplated herein, a non-accountable
expense allowance equal to one percent (1%) of the gross proceeds received by the Company from the sale of the Firm Shares and the Option
Shares, provided, however, that in the event that the Offering is terminated, the Company agrees to reimburse the Underwriters pursuant
to Section 8.3 hereof.
3.11
Application of Net Proceeds. The Company shall apply the net proceeds from the Offering received by it in a manner consistent
with the application thereof described under the caption “Use of Proceeds” in the Registration Statement, the Pricing Disclosure
Package and the Prospectus.
3.12
Delivery of Earnings Statements to Security Holders. The Company shall make generally available to its security holders as soon
as practicable, but not later than the first day of the fifteenth (15th) full calendar month following the date of this Agreement,
an earnings statement (which need not be certified by an independent registered public accounting firm unless required by the Securities
Act or the Securities Act Regulations, but which shall satisfy the provisions of Rule 158(a) under Section 11(a) of the Securities Act)
covering a period of at least twelve (12) consecutive months beginning after the date of this Agreement.
3.13
Stabilization. Neither the Company nor, to its knowledge, any of its employees, directors or shareholders (without the consent
of the Representative) has taken or shall take, directly or indirectly, any action designed to or that has constituted or that might
reasonably be expected to cause or result in, under Regulation M of the Exchange Act, or otherwise, stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of the Public Securities.
3.14
Internal Controls. The Company shall maintain a system of internal accounting controls sufficient to provide reasonable assurances
that: (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded
as necessary in order to permit preparation of financial statements in accordance with GAAP and to maintain accountability for assets;
(iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any
differences.
3.15
Accountants. As of the date of this Agreement, the Company has retained an independent registered public accounting firm reasonably
acceptable to the Representative, and the Company shall continue to retain a nationally recognized independent registered public accounting
firm for a period of at least two (2) years after the date of this Agreement. The Representative acknowledges that the Auditor is acceptable
to the Representative.
3.16
FINRA. For a period of 60 days from the later of the Closing Date, except as described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, the Company shall advise the Representative (who shall make an appropriate filing with FINRA)
if it is or becomes aware that (i) any officer or director of the Company, (ii) any beneficial owner of 5% or more of any class of the
Company’s securities or (iii) any beneficial owner of the Company’s unregistered equity securities which were acquired during
the 180 days immediately preceding the filing of the Registration Statement is or becomes an affiliate or associated person of a FINRA
member participating in the Offering (as determined in accordance with the rules and regulations of FINRA).
3.17
No Fiduciary Duties. The Company acknowledges and agrees that the Underwriters’ responsibility to the Company is solely
contractual in nature and that none of the Underwriters or their affiliates or any selling agent shall be deemed to be acting in a fiduciary
capacity, or otherwise owes any fiduciary duty to the Company or any of its affiliates in connection with the Offering and the other
transactions contemplated by this Agreement, except as described in the Registration Statement, the Pricing Disclosure Package and the
Prospectus.
3.18
Company Lock-Up Agreements.
3.18.1.
Restriction on Sales of Capital Stock. The Company, on behalf of itself and any successor entity, agrees that, without the prior
written consent of the Representative, which consent shall not be unreasonably withheld, conditioned or delayed, it will not, for a period
of six (6) months after the date of this Agreement (the “Lock-Up Period”), (i) offer, pledge, sell, contract to sell, sell
any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or
otherwise transfer or dispose of, directly or indirectly, any shares of capital stock of the Company or any securities convertible into
or exercisable or exchangeable for shares of capital stock of the Company; (ii) file or caused to be filed any registration statement
with the Commission relating to the offering of any shares of capital stock of the Company or any securities convertible into or exercisable
or exchangeable for shares of capital stock of the Company, other than a registration statement on Form S-8; (iii) complete any offering
of debt securities of the Company, other than entering into a line of credit or similar financing agreements; or (iv) enter into any
swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of capital stock
of the Company, whether any such transaction described in clause (i), (ii), (iii) or (iv) above is to be settled by delivery of shares
of capital stock of the Company or such other securities, in cash or otherwise.
The
restrictions contained in this Section 3.18.1 shall not apply to (i) the shares of Common Stock to be sold hereunder, (ii) the issuance
by the Company of shares of Common Stock upon the exercise of a stock option or warrant or the conversion of a security outstanding on
the date hereof, or other issuances of additional shares in accordance with the terms of securities, in each case, as disclosed in the
Registration Statement, Disclosure Package and Prospectus, provided that such options, warrants, and securities have not been amended
since the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion
price of such securities or to extend the term of such securities, or (iii) the issuance by the Company of stock options or shares of
capital stock of the Company under any equity compensation plan of the Company, provided that in each of (ii) and (iii) above, the underlying
shares shall be restricted from sale during the entire Lock-Up Period.
3.19
Release of D&O Lock-up Period. If the Representative, in its sole discretion, agrees to release or waive the restrictions
set forth in the Lock-Up Agreements described in Section 2.24 hereof for an officer or director of the Company and provide the Company
with notice of the impending release or waiver at least three (3) Business Days before the effective date of the release or waiver, the
Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit B hereto through
a major news service at least two (2) Business Days before the effective date of the release or waiver.
3.20
Blue Sky Qualifications. The Company shall use its reasonable best efforts, in cooperation with the Underwriters, if necessary,
to qualify the Public Securities for offering and sale under the applicable securities laws of such states and other jurisdictions (domestic
or foreign) as the Representative may designate and to maintain such qualifications in effect so long as required to complete the distribution
of the Public Securities; provided, however, that the Company shall not be obligated to file any general consent to service of process
or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
3.21
Reporting Requirements. The Company, during the period when a prospectus relating to the Public Securities is (or, but for the
exception afforded by Rule 172, would be) required to be delivered under the Securities Act, will file all documents required to be filed
with the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act and Exchange Act Regulations. Additionally,
the Company shall report the use of proceeds from the issuance of the Public Securities as may be required under Rule 463 under the Securities
Act Regulations.
4.
Conditions of Underwriters’ Obligations. The obligations of the Underwriters to purchase and pay for the Public Securities,
as provided herein, shall be subject to (i) the continuing accuracy of the representations and warranties of the Company as of the date
hereof and as of the Closing Date; (ii) the accuracy of the statements of officers of the Company made pursuant to the provisions hereof;
(iii) the performance by the Company of its obligations hereunder; and (iv) the following conditions:
4.1
Regulatory Matters.
4.1.1.
Effectiveness of Registration Statement; Rule 430A Information. The Registration Statement has become effective not later than
5:30 p.m., Eastern time, on the date of this Agreement or such later date and time as shall be consented to in writing by you, and, at
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. The Prospectus
containing the Rule 430A Information shall have been filed with the Commission in the manner and within the time frame required by Rule
424(b) (without reliance on Rule 424(b)(8)) or a post-effective amendment providing such information shall have been filed with, and
declared effective by, the Commission in accordance with the requirements of Rule 430A.
4.1.2.
FINRA Clearance. On or before the date of this Agreement, the Representative shall have received clearance from FINRA as to the
amount of compensation allowable or payable to the Underwriters as described in the Registration Statement.
4.1.3.
Exchange Stock Market Clearance. On the Closing Date, the Company’s shares of Common Stock, including the Firm Shares and
the Option Shares, shall have been approved for listing on the Exchange, subject only to official notice of issuance.
4.2
Company Counsel Matters.
4.2.1.
Closing Date Opinion of Counsel. On the Closing Date, the Representative shall have received the favorable opinion of Company
Counsel, dated the Closing Date and addressed to the Representative, in form and substance reasonably satisfactory to the Representative.
4.2.2.
Reliance. In rendering such opinions, such counsel may rely: (i) as to matters involving the application of laws other than the
laws of the United States and jurisdictions in which they are admitted, to the extent such counsel deems proper and to the extent specified
in such opinion, if at all, upon an opinion or opinions (in form and substance reasonably satisfactory to the Representative) of other
counsel reasonably acceptable to the Representative, familiar with the applicable laws; and (ii) as to matters of fact, to the extent
they deem proper, on certificates or other written statements of officers of the Company and officers of departments of various jurisdictions
having custody of documents respecting the corporate existence or good standing of the Company, provided that copies of any such statements
or certificates shall be delivered to Representative Counsel if requested.
4.3
Comfort Letters.
4.3.1.
Cold Comfort Letter. At the time this Agreement is executed you shall have received a cold comfort letter from the Auditor containing
statements and information of the type customarily included in accountants’ comfort letters with respect to the financial statements
and certain financial information contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus, addressed
to the Representative and in form and substance satisfactory in all respects to you and to the Auditor, dated as of the date of this
Agreement.
4.3.2.
Bring-down Comfort Letter. At the Closing Date, the Representative shall have received from the Auditor a letter, dated as of
the Closing Date, as applicable, to the effect that the Auditor reaffirms the statements made in the letter furnished pursuant to Section
4.3.1, except that the specified date referred to shall be a date not more than three (3) Business Days prior to the Closing Date, as
applicable.
4.4
Officers’ Certificates.
4.4.1.
Officers’ Certificate. The Company shall have furnished to the Representative a certificate, dated the Closing Date, of
its Chief Executive Officer and its Chief Financial Officer on behalf of the Company and not in an individual capacity stating that (i)
such officers have carefully examined the Registration Statement, the Pricing Disclosure Package, any Issuer Free Writing Prospectus
and the Prospectus and, in their opinion, the Registration Statement and each amendment thereto, as of the Applicable Time 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 required to be stated
therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and the
Pricing Disclosure Package, as of the Applicable Time and as of 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, (ii) since the effective date of the Registration
Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the Pricing
Disclosure Package or the Prospectus, (iii) to the best of their knowledge after reasonable investigation, as of the Closing Date, the
representations and warranties of the Company in this Agreement are true and correct and the Company has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, and (iv) there has not
been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the Pricing Disclosure
Package, any material adverse change in the financial position or results of operations of the Company, or any change or development
that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting
the condition (financial or otherwise), results of operations, business, assets or prospects of the Company, except as set forth in the
Prospectus.
4.4.2.
Secretary’s Certificate. At the Closing Date, the Representative shall have received a certificate of the Company signed
by the Secretary of the Company, dated the Closing Date, certifying: (i) that the Charter is true and complete, has not been modified
and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in
full force and effect and have not been modified; (iii) as to the accuracy and completeness of all correspondence between the Company
or its counsel and the Commission; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate
shall be attached to such certificate.
4.5
No Material Changes. Prior to and on 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 Pricing Disclosure Package and the Prospectus;
(ii) no action, suit or proceeding, at law or in equity, shall have been pending or threatened against the Company or any Insider before
or by any court or federal or state commission, board or other administrative agency wherein an unfavorable decision, ruling or finding
may result in a Material Adverse Change, except as set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus;
(iii) no stop order shall have been issued under the Securities Act and no proceedings therefor shall have been initiated or threatened
by the Commission; and (iv) the Registration Statement, the Pricing Disclosure Package and the Prospectus and any amendments or supplements
thereto shall contain all material statements which are required to be stated therein in accordance with the Securities Act and the Securities
Act Regulations and shall conform in all material respects to the requirements of the Securities Act and the Securities Act Regulations,
and neither the Registration Statement, the Pricing Disclosure Package nor the Prospectus nor any amendment or supplement thereto shall
contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were made, not misleading.
4.6
Delivery of Agreements.
4.6.1.
Lock-Up Agreements. On or before the date of this Agreement, the Company shall have delivered to the Representative executed copies
of the Lock-Up Agreements from each of the persons listed in Schedule 3 hereto that the Company was able to obtain using its best
efforts.
4.7
Additional Documents. At the Closing Date, Representative Counsel shall have been furnished with such documents and opinions as
they may reasonably require for the purpose of enabling Representative Counsel to deliver an opinion to the Underwriters, or in order
to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company in connection with the issuance and sale of the Public Securities as herein contemplated shall
be reasonably satisfactory in form and substance to the Representative and Representative Counsel.
5.
Indemnification.
5.1
Indemnification of the Underwriters.
5.1.1.
General. Subject to the conditions set forth below, the Company agrees to indemnify and hold harmless each Underwriter, its affiliates
and each of its and their respective directors, officers, members, employees, representatives, partners, shareholders, affiliates, counsel,
and agents and each person, if any, who controls any such Underwriter within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act (collectively the “Underwriter Indemnified Parties,” and each an “Underwriter Indemnified Party”),
against any and all loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all legal or other
expenses reasonably incurred in investigating, preparing or defending against any litigation, commenced or threatened, or any claim whatsoever,
whether arising out of any action between any of the Underwriter Indemnified Parties and the Company or between any of the Underwriter
Indemnified Parties and any third party, or otherwise) to which they or any of them may become subject under the Securities Act, the
Exchange Act or any other statute or at common law or otherwise or under the laws of foreign countries (a “Claim”), (i) arising
out of or based upon any untrue statement or alleged untrue statement of a material fact contained in (A) the Registration Statement,
the Pricing Disclosure Package, any Preliminary Prospectus, the Prospectus, or in any Issuer Free Writing Prospectus or in any Written
Testing-the-Waters Communication (as from time to time each may be amended and supplemented); (B) 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 (C) any application or other document
or written communication (in this Section 5, collectively called “application”) executed by the Company or based upon written
information furnished by the Company in any jurisdiction in order to qualify the Public Securities under the securities laws thereof
or filed with the Commission, any state securities commission or agency, the Exchange or any other national securities exchange; or the
omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein,
in 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 Underwriters’ Information or (ii) otherwise arising in connection with or allegedly in connection
with the Offering. The Company also agrees that it will reimburse each Underwriter Indemnified Party for all fees and expenses (including,
but not limited to, any and all legal or other expenses reasonably incurred in investigating, preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever, whether arising out of any action between any of the Underwriter Indemnified Parties
and the Company or between any of the Underwriter Indemnified Parties and any third party, or otherwise) (collectively, the “Expenses”),
and further agrees wherever and whenever possible to advance payment of Expenses as they are incurred by an Underwriter Indemnified Party
in investigating, preparing, pursuing or defending any Claim.
5.1.2.
Procedure. If any action is brought against an Underwriter Indemnified Party in respect of which indemnity may be sought against
the Company pursuant to Section 5.1.1, such Underwriter Indemnified Party shall promptly notify the Company in writing of the institution
of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the
reasonable approval of such Underwriter Indemnified Party) and payment of actual expenses if an Underwriter Indemnified Party requests
that the Company do so. Such Underwriter Indemnified Party shall have the right to employ its or their own counsel in any such case,
but the fees and expenses of such counsel shall be at the expense of the Company, and shall be advanced by the Company. The Company shall
not be liable for any settlement of any action effected without its consent (which shall not be unreasonably withheld). In addition,
the Company shall not, without the prior written consent of the Underwriters, 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 Underwriter Indemnified Party is a party thereto) unless such settlement, compromise,
consent or termination (i) includes an unconditional release of each Underwriter Indemnified Party, acceptable to such Underwriter Indemnified
Party, from all liabilities, expenses and claims arising out of such action for which indemnification or contribution may be sought 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 Underwriter
Indemnified Party.
5.2
Indemnification of the Company. Each Underwriter, severally and not jointly, 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 loss, liability, claim, damage and expense described in the
foregoing indemnity from the Company to the several Underwriters, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions made in the Registration Statement, any Preliminary Prospectus, the Pricing Disclosure Package
or Prospectus or any amendment or supplement thereto or in any application, in reliance upon, and in strict conformity with, the Underwriters’
Information. In case any action shall be brought against the Company or any other person so indemnified based on any Preliminary Prospectus,
the Registration Statement, the Pricing Disclosure Package or Prospectus or any amendment or supplement thereto or any application, and
in respect of which indemnity may be sought against any Underwriter, such Underwriter shall have the rights and duties given to the Company,
and the Company and each other person so indemnified shall have the rights and duties given to the several Underwriters by the provisions
of Section 5.1.2. The Company agrees promptly to notify the Representative of the commencement of any litigation or proceedings against
the Company or any of its officers, directors or any person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, in connection with the issuance and sale of the Public Securities or in connection
with the Registration Statement, the Pricing Disclosure Package, the Prospectus, or any Issuer Free Writing Prospectus or any Written
Testing-the-Waters Communication.
5.3
Contribution.
5.3.1.
Contribution Rights. If the indemnification provided for in this Section 5 shall for any reason be unavailable to or insufficient
to hold harmless an indemnified party under Section 5.1 or 5.2 in respect of any loss, claim, damage or liability, or any action in respect
thereof, referred to therein, then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits received by the Company, on the one hand, and the Underwriters,
on the other, from the Offering of the Public Securities, or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company, on the one hand, and the Underwriters, on the other, with respect to the statements or omissions that
resulted in such loss, claim, damage or liability, or action in respect thereof, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the Underwriters, on the other, with respect to such Offering shall
be deemed to be in the same proportion as the total net proceeds from the Offering of the Public Securities purchased under this Agreement
(before deducting expenses) received by the Company, as set forth in the table on the cover page of the Prospectus, on the one hand,
and the total underwriting discounts and commissions received by the Underwriters with respect to the shares of the Common Stock purchased
under this Agreement, as set forth in the table on the cover page of the Prospectus, on the other hand. The relative fault shall be determined
by reference to whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or the Underwriters, the intent of the parties and their relative knowledge, access
to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would
not be just and equitable if contributions pursuant to this Section 5.3.1 were to be determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of allocation that does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a result of the loss, claim, damage or liability, or action
in respect thereof, referred to above in this Section 5.3.1 shall be deemed to include, for purposes of this Section 5.3.1, any legal
or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 5.3.1 in no event shall an Underwriter be required to contribute any amount in excess
of the amount by which the total underwriting discounts and commissions received by such Underwriter with respect to the Offering of
the Public Securities exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
5.3.2.
Contribution Procedure. Within fifteen (15) days after receipt by any party to this Agreement (or its representative) of notice
of the commencement of any action, suit or proceeding, such party will, if a claim for contribution in respect thereof is to be made
against another party (“contributing party”), notify the contributing party of the commencement thereof, but the failure
to so notify the contributing party will not relieve it from any liability which it may have to any other party other than for contribution
hereunder. In case any such action, suit or proceeding is brought against any party, and such party notifies a contributing party or
its representative of the commencement thereof within the aforesaid fifteen (15) days, the contributing party will be entitled to participate
therein with the notifying party and any other contributing party similarly notified. Any such contributing party shall not be liable
to any party seeking contribution on account of any settlement of any claim, action or proceeding affected by such party seeking contribution
on account of any settlement of any claim, action or proceeding affected by such party seeking contribution without the written consent
of such contributing party. The contribution provisions contained in this Section 5.3.2 are intended to supersede, to the extent permitted
by law, any right to contribution under the Securities Act, the Exchange Act or otherwise available. Each Underwriter’s obligations
to contribute pursuant to this Section 5.3.2 are several and not joint.
6.
Default by an Underwriter.
6.1
Default Not Exceeding 10% of Firm Shares or Option Shares. If any Underwriter or Underwriters shall default in its or their obligations
to purchase the Firm Shares (or, as the case may be, the Option Shares), and if the number of the Firm Shares or Option Shares with respect
to which such default relates does not exceed in the aggregate ten percent (10%) of the number of Firm Shares or Option Shares that all
Underwriters have agreed to purchase hereunder, then such Firm Shares or Option Shares to which the default relates shall be purchased
by the non-defaulting Underwriters in proportion to their respective commitments hereunder.
6.2
Default Exceeding 10% of Firm Shares or Option Shares. In the event that the default addressed in Section 6.1 relates to more
than ten percent (10%) of the Firm Shares or applicable Option Shares, you may in your discretion arrange for yourself or for another
party or parties to purchase such Firm Shares or Option Shares to which such default relates on the terms contained herein. If, within
one (1) Business Day after such default relating to more than ten percent (10%) of the Firm Shares or Option Shares, you do not arrange
for the purchase of such Firm Shares, then the Company shall be entitled to a further period of one (1) Business Day within which to
procure another party or parties satisfactory to you to purchase said Firm Shares or Option Shares on such terms. In the event that neither
you nor the Company arrange for the purchase of the Firm Shares or Option Shares to which a default relates as provided in this Section
6, this Agreement will automatically be terminated by you or the Company without liability on the part of the Company (except as provided
in Sections 3.10 and 5 hereof) or the several Underwriters (except as provided in Section 5 hereof); provided, however, that nothing
herein shall relieve a defaulting Underwriter of its liability, if any, to the other Underwriters and to the Company for damages occasioned
by its default hereunder.
6.3
Postponement of Closing Date. In the event that the Firm Shares or Option Shares to which the default relates are to be purchased
by the non-defaulting Underwriters, or are to be purchased by another party or parties as aforesaid, you or the Company shall have the
right to postpone the Closing Date for a reasonable period, but not in any event exceeding five (5) Business Days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement, the Pricing Disclosure Package or the Prospectus or in
any other documents and arrangements, and the Company agrees to file promptly any amendment to the Registration Statement, the Pricing
Disclosure Package or the Prospectus that in the opinion of Company Counsel and counsel to the Representative may thereby be made necessary.
The term “Underwriter” as used in this Agreement shall include any party substituted under this Section 6 with like effect
as if it had originally been a party to this Agreement with respect to such shares of Common Stock.
7.
Additional Covenants.
7.1
Board Composition and Board Designations. The Company shall ensure as of the Closing Date that: (i) the qualifications of the
persons serving as members of the Board of Directors and the overall composition of the Board of Directors comply with the Sarbanes-Oxley
Act, with the Exchange Act and with the listing rules of the Exchange or any other national securities exchange, as the case may be,
in the event the Company seeks to have its Public Securities listed on another exchange or quoted on an automated quotation system, and
(ii) if applicable, at least one (1) member of the Audit Committee of the Board of Directors qualifies as an “audit committee financial
expert,” as such term is defined under Regulation S-K and the listing rules of the Exchange.
7.2
Prohibition on Press Releases and Public Announcements. Except as required by law or rule of Nasdaq, the Company shall not issue
press releases or engage in any other publicity, without the Representative’s prior written consent, which consent shall not be
unreasonably withheld, conditioned or delayed, for a period ending at 5:00 p.m., Eastern time, on the first (1st) Business
Day following the forty-fifth (45th) day after the Closing Date, other than normal and customary releases issued in the ordinary
course of the Company’s business.
7.3
Right of First Refusal. Provided that the Firm Shares are sold in accordance with the terms of this Agreement, the Representative
shall have an irrevocable right of first refusal (the “Right of First Refusal”), for a period of twelve (12) months after
the Firm Shares Closing Date, to act as lead or joint-lead investment banker, lead or joint book-runner, and/or lead or joint placement
agent, at the Representative’s sole and exclusive discretion, for each and every future public and private equity and debt offering,
including all equity linked financings (each, a “Subject Transaction”), during such twelve (12) month period, of the Company,
or any successor to or subsidiary of the Company, on terms and conditions customary to the Representative for such Subject Transactions.
For the avoidance of any doubt, the Company shall not retain, engage or solicit any additional investment banker, book-runner and/or
placement agent in a Subject Transaction without the express written consent of the Representative, which consent shall not be unreasonably
withheld, conditioned or delayed.
The
Company shall notify the Representative of its intention to pursue a Subject Transaction, including the material terms thereof, by providing
written notice thereof by email. If the Representative fails to exercise its Right of First Refusal with respect to any Subject Transaction
within ten (10) days after the mailing of such written notice, then the Representative shall have no further claim or right with respect
to the Subject Transaction. The Representative may elect, in its sole and absolute discretion, not to exercise its Right of First Refusal
with respect to any Subject Transaction; provided that any such election by the Representative shall not adversely affect the Representative’s
Right of First Refusal with respect to any other Subject Transaction during the twelve (12) month period agreed to above.
7.4
Covenant of the Underwriters. The Underwriters covenant with the Company not to take any action that would result in the Company
being required to file with the Commission under Rule 433(d) a free writing prospectus prepared by or on behalf of such Underwriters
that otherwise would not be required to be filed by the Company thereunder but for the action of the Underwriters.
8.
Effective Date of this Agreement and Termination Thereof.
8.1
Effective Date. This Agreement shall become effective when both the Company and the Representative have executed the same and
delivered counterparts of such signatures to the other party.
8.2
Termination. The Representative shall have the right to terminate this Agreement at any time prior to any Closing Date, (i) if
any domestic or international event or act or occurrence has materially disrupted, or in your opinion will in the immediate future materially
disrupt, general securities markets in the United States; or (ii) if trading on the New York Stock Exchange or the Nasdaq Stock Market
LLC shall have been suspended or materially limited, or minimum or maximum prices for trading shall have been fixed, or maximum ranges
for prices for securities shall have been required by FINRA or by order of the Commission or any other government authority having jurisdiction;
or (iii) if the United States shall have become involved in a new war or an increase in major hostilities; or (iv) if a banking moratorium
has been declared by a New York State or federal authority; or (v) if a moratorium on foreign exchange trading has been declared which
materially adversely impacts the United States securities markets; or (vi) if the Company shall have sustained a material loss by fire,
flood, accident, hurricane, earthquake, theft, sabotage or other calamity or malicious act which, whether or not such loss shall have
been insured, will, in your opinion, make it inadvisable to proceed with the delivery of the Firm Shares (or Option Shares, as the case
may be); or (vii) if the Company is in material breach of any of its representations, warranties or covenants hereunder; or (viii) if
the Representative shall have become aware after the date hereof of such a material adverse change in the conditions or prospects of
the Company, or such adverse material change in general market conditions as in the Representative’s reasonable judgment would
make it impracticable to proceed with the offering, sale and/or delivery of the Public Securities or to enforce contracts made by the
Underwriters for the sale of the Public Securities.
8.3
Expenses. Notwithstanding anything to the contrary in this Agreement, except in the case of a default by the Underwriters, pursuant
to Section 6.2 above, in the event that this Agreement shall not be carried out for any reason whatsoever, within the time specified
herein or any extensions thereof pursuant to the terms herein, the Company shall be obligated to pay to the Representative, within fifteen
(15) calendar days of receipt by the company, of their actual and accountable out-of-pocket expenses related to the transactions contemplated
herein then due and payable (including the fees and disbursements of Representative Counsel) up to $50,000; provided, however, that such
expense cap in no way limits or impairs the indemnification and contribution provisions of this Agreement. In addition to the forgoing,
our company shall be responsible for the costs of background checks on its senior management in an amount not to exceed $7,500. Notwithstanding
the foregoing, any advance received by the Representative will be reimbursed to the Company to the extent not actually incurred in compliance
with FINRA Rule 5110(g)(4)(A).
8.4
Indemnification. Notwithstanding any contrary provision contained in this Agreement, any election hereunder or any termination
of this Agreement, and whether or not this Agreement is otherwise carried out, the provisions of Section 5 shall remain in full force
and effect and shall not be in any way affected by, such election or termination or failure to carry out the terms of this Agreement
or any part hereof.
8.5
Representations, Warranties, Agreements to Survive. All representations, warranties and agreements contained in this Agreement
or in certificates of officers of the Company submitted pursuant hereto, shall remain operative and in full force and effect regardless
of (i) any investigation made by or on behalf of any Underwriter or its Affiliates or selling agents, any person controlling any Underwriter,
its officers or directors or any person controlling the Company or (ii) delivery of and payment for the Public Securities.
9.
Miscellaneous.
9.1
Notices. All communications hereunder, except as herein otherwise specifically provided, shall be in writing and shall be mailed
(registered or certified mail, return receipt requested), personally delivered or sent by electronic transmission and confirmed and shall
be deemed given when so delivered or emailed and confirmed (which may be by email) or if mailed, two (2) days after such mailing.
If
to the Representative:
The
Benchmark Company, LLC
150
East 58th Street, 17th Floor
New
York, NY 10155
Attn:
Michael Jacobs
Email:
mjacobs@benchmarkcompany.com
with
a copy (which shall not constitute notice) to:
Lucosky
Brookman LLP
101
Wood Avenue South, 5th Floor
Woodbridge,
NJ 08830
Attn:
Joseph M. Lucosky, Esq.
Email:
JLucosky@lucbro.com
If
to the Company:
Nano
Nuclear Energy Inc.
1411
Broadway, 38th Floor
New
York, New York 10018
Attention:
James Walker, Chief Executive Officer
Email:
james@nanonuclearenergy.com
with
a copy (which shall not constitute notice) to:
Ellenoff
Grossman & Schole LLP
1345
Avenue of the Americas
New
York, NY 10105
Attention:
Richard I. Anslow, Esq.
Email:
ranslow@egsllp.com
9.2
Headings. The headings contained herein are for the sole purpose of convenience of reference, and shall not in any way limit or
affect the meaning or interpretation of any of the terms or provisions of this Agreement.
9.3
Amendment. This Agreement may only be amended by a written instrument executed by each of the parties hereto.
9.4
Entire Agreement. This Agreement (together with the other agreements and documents being delivered pursuant to or in connection
with this Agreement) constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and thereof, and
supersedes all prior agreements and understandings of the parties, oral and written, with respect to the subject matter hereof. Notwithstanding
anything to the contrary set forth herein, it is understood and agreed by the parties hereto that the terms and conditions of that certain
engagement letter between the Company and The Benchmark Company, LLC dated June 22, 2023, are superseded by this Agreement, except for
the indemnification provisions thereof which shall remain in force and effect for the period from the date of such engagement letter
until the Effective Date.
9.5
Binding Effect. This Agreement shall inure solely to the benefit of and shall be binding upon the Representative, the Underwriters,
the Company and the controlling persons, directors and officers referred to in Section 5 hereof, and their respective successors, legal
representatives, heirs and assigns, and no other person shall have or be construed to have any legal or equitable right, remedy or claim
under or in respect of or by virtue of this Agreement or any provisions herein contained. The term “successors and assigns”
shall not include a purchaser, in its capacity as such, of securities from any of the Underwriters.
9.6
Governing Law; Consent to Jurisdiction; Trial by Jury. This Agreement shall be governed by and construed and enforced in accordance
with the laws of the State of New York, without giving effect to conflict of laws principles thereof. The Company hereby agrees that
any action, proceeding or claim against it arising out of, or relating in any way to this Agreement shall be brought and enforced in
the New York Supreme Court, County of New York, or in the United States District Court for the Southern District of New York, and irrevocably
submits to such jurisdiction, which jurisdiction shall be exclusive. The Company hereby waives any objection to such exclusive jurisdiction
and that such courts represent an inconvenient forum. Any such process or summons to be served upon the Company may be served by transmitting
a copy thereof by registered or certified mail, return receipt requested, postage prepaid, addressed to it at the address set forth in
Section 9.1 hereof. Such mailing shall be deemed personal service and shall be legal and binding upon the Company in any action, proceeding
or claim. The Company agrees that the prevailing party(ies) in any such action shall be entitled to recover from the other party(ies)
all of its reasonable attorneys’ fees and expenses relating to such action or proceeding and/or incurred in connection with the
preparation therefor. The Company (on its behalf and, to the extent permitted by applicable law, on behalf of its stockholders and affiliates)
and each of the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial
by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
9.7
Execution in Counterparts. This Agreement may be executed in one or more counterparts, and by the different parties hereto in
separate counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one and the
same agreement, and shall become effective when one or more counterparts has been signed by each of the parties hereto and delivered
to each of the other parties hereto. Delivery of a signed counterpart of this Agreement by facsimile or email/pdf transmission shall
constitute valid and sufficient delivery thereof.
9.8
Waiver, etc. The failure of any of the parties hereto to at any time enforce any of the provisions of this Agreement shall not
be deemed or construed to be a waiver of any such provision, nor to in any way affect the validity of this Agreement or any provision
hereof or the right of any of the parties hereto to thereafter enforce each and every provision of this Agreement. No waiver of any breach,
non-compliance or non-fulfillment of any of the provisions of this Agreement shall be effective unless set forth in a written instrument
executed by the party or parties against whom or which enforcement of such waiver is sought; and no waiver of any such breach, non-compliance
or non-fulfillment shall be construed or deemed to be a waiver of any other or subsequent breach, non-compliance or non-fulfillment.
[Signature
Page Follows]
If
the foregoing correctly sets forth the understanding between the Underwriters and the Company, please so indicate in the space provided
below for that purpose, whereupon this letter shall constitute a binding agreement between us.
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Very
truly yours, |
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NANO
NUCLEAR ENERGY, INC. |
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By: |
/s/
Jay Jiang Yu |
|
Name: |
Jay
Jiang Yu |
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Title: |
Chairman
of the Board and President |
Confirmed as of the date first written above mentioned, on behalf of itself and as Representative of the underwriters named on Schedule 1 hereto:
THE
BENCHMARK COMPANY, LLC |
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By: |
/s/
Michael Jacobs |
|
Name: |
Michael
Jacobs |
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Title: |
Managing
Director, Head of Equity Capital Markets |
|
[SIGNATURE
PAGE]
NANO
NUCLEAR ENERGY INC. – UNDERWRITING AGREEMENT
SCHEDULE
1
Underwriter | |
Total Number of Firm Shares to be Purchased | | |
Total Number of Option Shares Subject to Over-Allotment Option | |
The Benchmark Company, LLC | |
| | | |
| | |
| |
| | | |
| | |
TOTAL | |
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SCHEDULE
2-A
Pricing
Information
Number
of Firm Shares: 2,562,500
Public
Offering Price per Share: $4.00
Underwriting
Discount per Share: 7%
Proceeds
to Company per Share (before expenses): $3.72
SCHEDULE
2-B
Issuer
General Use Free Writing Prospectuses
Free
writing prospectus, filed with the Commission on April 4, 2024 and April 11, 2024, respectively.
SCHEDULE
2-C
Written
Testing-the-Waters Communications
None.
SCHEDULE
3
List
of Lock-Up Parties
|
1. |
I
Financial Ventures Group LLC |
|
2. |
Mongkol
Prakitchaiwatthana |
|
3. |
Jay
Jiang Yu |
|
4. |
James
Walker |
|
5. |
Jaisun
Garcha |
|
6. |
Winston
Khun Hunn Chow |
|
7. |
Dr.
Tsun Yee Law |
|
8. |
Diane
Hare |
|
9. |
Dr.
Kenny Yu |
EXHIBIT
A
Form
of Lock-Up Agreement
[●],
2024
The
Benchmark Company, LLC
150
E. 58th Street, 17th Floor
New
York, NY 10155
As
Representative of the several underwriters named on Schedule 1 to the Underwriting Agreement referenced below.
Ladies
and Gentlemen:
The
undersigned understands that The Benchmark Company, LLC (the “Representative”), proposes to enter into an Underwriting
Agreement (the “Underwriting Agreement”) with Nano Nuclear Energy Inc. , a corporation formed under the laws of the
State of Nevada (collectively with its subsidiaries and affiliates the “Company”), providing for the initial public
offering (the “Public Offering”) of common stock, no par value per share, of the Company (the “Common Stock”).
To
induce the Representative to continue its efforts in connection with the Public Offering, the undersigned hereby agrees that, without
the prior written consent of the Representative, the undersigned will not, during the period commencing on the date hereof and ending
on the date which is six (6) months days after the date of the Underwriting Agreement relating to the Public Offering (the “Lock-Up
Period”), (1) offer, pledge, sell, contract to sell, grant, lend, or otherwise transfer or dispose of, directly or indirectly,
any Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, whether now owned or hereafter acquired
by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up
Securities”); (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of the Lock-Up Securities, whether any such transaction described in clause (1) or (2) above is to be settled
by delivery of Lock-Up Securities, in cash or otherwise; (3) make any demand for or exercise any right with respect to the registration
of any Lock-Up Securities; or (4) publicly disclose the intention to make any offer, sale, pledge or disposition, or to enter into any
transaction, swap, hedge or other arrangement relating to any Lock-Up Securities. Notwithstanding the foregoing, and subject to the conditions
below, the undersigned may transfer Lock-Up Securities without the prior written consent of the Representative in connection with (a)
transactions relating to Lock-Up Securities acquired in open market transactions after the completion of the Public Offering; provided
that no filing under Section 13 or Section 16(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
or other public announcement shall be required or shall be voluntarily made in connection with subsequent sales of Lock-Up Securities
acquired in such open market transactions; (b) transfers of Lock-Up Securities as a bona fide gift, by will or intestacy or to
a family member or trust for the benefit of the undersigned or a family member (for purposes of this lock-up agreement, “family
member” means any relationship by blood, marriage or adoption, not more remote than first cousin); (c) transfers of Lock-Up Securities
to a charity or educational institution; (d) if the undersigned is a corporation, partnership, limited liability company or other business
entity, (i) any transfers of Lock-Up Securities to another corporation, partnership or other business entity that controls, is controlled
by or is under common control with the undersigned or (ii) distributions of Lock-Up Securities to members, partners, stockholders, subsidiaries
or affiliates (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the undersigned; (e) if the undersigned
is a trust, to a trustee or beneficiary of the trust; provided that in the case of any transfer pursuant to the foregoing clauses
(b), (c) (d) or (e), (i) any such transfer shall not involve a disposition for value, (ii) each transferee shall sign and deliver to
the Representative a lock-up agreement substantially in the form of this lock-up agreement and (iii) no filing under Section 13 or Section
16(a) of the Exchange Act or other public announcement shall be required or shall be voluntarily made; (f) the receipt by the undersigned
from the Company of Common Stock upon the vesting of restricted stock awards or stock units or upon the exercise of options to purchase
the Company’s Common Stock issued under an equity incentive plan of the Company or an employment or consulting arrangement (the
“Plan Shares”) or the transfer of Common Stock or any securities convertible into Common Stock to the Company upon
a vesting event of the Company’s securities or upon the exercise of options to purchase the Company’s securities, in each
case on a “cashless” or “net exercise” basis or to cover tax obligations of the undersigned in connection with
such vesting or exercise, but only to the extent such right expires during the Lock-up Period, provided that no filing under Section
13 or Section 16(a) of the Exchange Act or other public announcement shall be required or shall be voluntarily made within six (6) months
after the date of the Underwriting Agreement, and after such six (6) months, if the undersigned is required to file a report under Section
13 or Section 16(a) of the Exchange Act reporting a reduction in beneficial ownership of Common Stock during the Lock-Up Period, the
undersigned shall include a statement in such schedule or report to the effect that the purpose of such transfer was in connection with
a “cashless” or “net exercise” of the security or to cover tax withholding obligations of the undersigned in
connection with such vesting or exercise and, provided further, that the Plan Shares shall be subject to the terms of this lock-up
agreement; (g) the transfer of Lock-Up Securities pursuant to agreements described in the Pricing Prospectus under which the Company
has the option to repurchase such securities or a right of first refusal with respect to the transfer of such securities, provided
that if the undersigned is required to file a report under Section 13 or Section 16(a) of the Exchange Act reporting a reduction
in beneficial ownership of Common Stock during the Lock-Up Period, the undersigned shall include a statement in such schedule or report
describing the purpose of the transaction; (h) the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act for
the transfer of Lock-Up Securities, provided that (1) such plan does not provide for the transfer of Lock-Up Securities during
the Lock-Up Period and (2) to the extent a public announcement or filing under the Exchange Act, if any, is required of or voluntarily
made by or on behalf of the undersigned or the Company regarding the establishment of such plan, such public announcement or filing shall
include a statement to the effect that no transfer of Lock-Up Securities may be made under such plan during the Lock-Up Period; (i) the
conversion of the outstanding preferred stock of the Company into Common Stock, provided that such Common Stock remain subject to the
terms of this agreement; (j) the transfer of Lock-Up Securities that occurs by operation of law, such as pursuant to a qualified domestic
order or in connection with a divorce settlement, provided that the transferee agrees to sign and deliver a lock-up agreement
substantially in the form of this lock-up agreement for the balance of the Lock-Up Period, and provided further, that any filing
under Section 13 or Section 16(a) of the Exchange Act that is required to be made during the Lock-Up Period as a result of such transfer
shall include a statement that such transfer has occurred by operation of law; and (k) the transfer of Lock-Up Securities pursuant to
a bona fide third party tender offer, merger, consolidation or other similar transaction made to all holders of the Common Stock involving
a change of control (as defined below) of the Company after the closing of the Public Offering and approved by the Company’s board
of directors; provided that in the event that the tender offer, merger, consolidation or other such transaction is not completed,
the Lock-Up Securities owned by the undersigned shall remain subject to the restrictions contained in this lock-up agreement. For purposes
of clause (k) above, “change of control” shall mean the consummation of any bona fide third party tender offer, merger, amalgamation,
consolidation or other similar transaction the result of which is that any “person” (as defined in Section 13(d)(3) of the
Exchange Act), or group of persons, becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 of the Exchange Act) of a majority
of total voting power of the voting stock of the Company. The undersigned also agrees and consents to the entry of stop transfer instructions
with the Company’s transfer agent and registrar against the transfer of the undersigned’s Lock-Up Securities except in compliance
with this lock-up agreement.
The
undersigned agrees that, prior to engaging in any transaction or taking any other action that is subject to the terms of this lock-up
agreement during the period from the date hereof to and including the 34th day following the expiration of the Lock-Up Period, the undersigned
will give notice thereof to the Company and will not consummate any such transaction or take any such action unless it has received written
confirmation from the Company that the Lock-Up Period has expired.
If
the undersigned is an officer or director of the Company, (i) the undersigned agrees that the foregoing restrictions shall be equally
applicable to any issuer-directed or “friends and family” Securities that the undersigned may purchase in the Public Offering;
(ii) the Representative agrees that, at least three (3) business days before the effective date of any release or waiver of the foregoing
restrictions in connection with a transfer of Lock-Up Securities, the Representative will notify the Company of the impending release
or waiver; and (iii) the Company has agreed in the Underwriting Agreement to announce the impending release or waiver by press release
through a major news service at least two (2) business days before the effective date of the release or waiver. Any release or waiver
granted by the Representative hereunder to any such officer or director shall only be effective two (2) business days after the publication
date of such press release. The provisions of this paragraph will not apply if (a) the release or waiver is effected solely to permit
a transfer of Lock-Up Securities not for consideration and (b) the transferee has agreed in writing to be bound by the same terms described
in this lock-up agreement to the extent and for the duration that such terms remain in effect at the time of such transfer.
The
undersigned understands that the Company and the Representative are relying upon this lock-up agreement in proceeding toward consummation
of the Public Offering. The undersigned further understands that this lock-up agreement is irrevocable and shall be binding upon the
undersigned’s heirs, legal representatives, successors and assigns.
The
undersigned understands that, if the Underwriting Agreement is not executed by May 10, 2024, or if the Underwriting Agreement (other
than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of the Common
Stock to be sold thereunder, then this lock-up agreement shall be void and of no further force or effect.
[SIGNATURE
PAGE FOLLOWS]
Whether
or not the Public Offering actually occurs depends on a number of factors, including market conditions. Any Public Offering will only
be made pursuant to an Underwriting Agreement, the terms of which are subject to negotiation between the Company and the Representative.
Delivery
of a signed copy of this lock-up agreement by facsimile, electronic signature or e-mail/.pdf transmission shall be effective as the delivery
of the original hereof.
This
lock-up agreement shall be governed by, and construed in accordance with, the laws of the State of New York.
|
Very
truly yours, |
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|
(Name
- Please Print) |
|
|
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(Signature) |
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|
(Name
of Signatory, in the case of entities - Please Print) |
|
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(Title
of Signatory, in the case of entities - Please Print) |
[SIGNATURE
PAGE TO NANO NUCLEAR ENERGY INC. LOCK-UP AGREEMENT]
EXHIBIT
B
Form
of Press Release
NANO
NUCLEAR ENERGY INC.
[Date]
Nano
Nuclear Energy Inc. (the “Company”) announced today that The Benchmark Company, LLC, acting as representative for the underwriters
in the Company’s recent public offering of _______ shares of the Company’s common stock, is [waiving] [releasing] a lock-up
restriction with respect to _________ shares of the Company’s common stock held by [certain officers or directors] [an officer
or director] of the Company. The [waiver] [release] will take effect on _________, 20___, and the shares may be sold on or after such
date.
This
press release is not an offer or sale of the securities in the United States or in any other jurisdiction where such offer or sale is
prohibited, and such securities may not be offered or sold in the United States absent registration or an exemption from registration
under the Securities Act of 1933, as amended.
Exhibit
4.1
THE
REGISTERED HOLDER OF THIS PURCHASE WARRANT BY ITS ACCEPTANCE HEREOF, AGREES THAT IT WILL NOT SELL, TRANSFER OR ASSIGN THIS PURCHASE WARRANT
EXCEPT AS HEREIN PROVIDED AND THE REGISTERED HOLDER OF THIS PURCHASE WARRANT AGREES THAT IT WILL NOT SELL, TRANSFER, ASSIGN, PLEDGE OR
HYPOTHECATE THIS PURCHASE WARRANT FOR A PERIOD OF ONE HUNDRED EIGHTY DAYS FOLLOWING MAY 10, 2024, WHICH IS THE COMMENCEMENT DATE OF SALES
IN THE OFFERING (THE “EFFECTIVE DATE”) TO ANYONE OTHER THAN (I) THE BENCHMARK COMPANY LLC, OR AN UNDERWRITER OR SELECTED
DEALER IN CONNECTION WITH THE OFFERING (THE “OFFERING”), OR (II) THE BONA FIDE OFFICERS OR PARTNERS, REGISTERED PERSONS OR
AFFILIATES OF BENCHMARK COMPANY LLC OR ANY SUCH AN UNDERWRITER OR SELECTED DEALER.
THIS
PURCHASE WARRANT IS NOT EXERCISABLE PRIOR TO MAY 10, 2024. VOID AFTER 5:00 P.M., EASTERN TIME, MAY 10, 2029.
NANO
NUCLEAR ENERGY, INC.
FORM
OF REPRESENTATIVE’S WARRANT
For
the Purchase of 179,375 Shares of Common Stock
1.
Purchase Warrant. THIS CERTIFIES THAT, in consideration of funds duly paid by or on behalf of The Benchmark Company, LLC (“Holder”
or “Benchmark”), as registered owner of this Purchase Warrant, to Nano Nuclear Energy, Inc., a Nevada corporation
(the “Company”), Holder is entitled, at any time or from time to time beginning May 10, 2024 (the “Commencement
Date”), and at or before 5:00 p.m., Eastern time, May 10, 2029 (the “Expiration Date”), but not thereafter,
to subscribe for, purchase and receive, in whole or in part, up to 179,375 shares (the “Warrant Shares”) of common
stock, par value $0.0001 per share (the “Common Stock”) of the Company, subject to adjustment as provided in Section
6 hereof. If the Expiration Date is not a business day, then this Purchase Warrant may be exercised on the next succeeding business day
in accordance with the terms herein. During the period commencing on the Commencement Date and ending on the Expiration Date, the Company
agrees not to take any action that would terminate this Purchase Warrant. The Exercise Price of this Purchase Warrant is initially $5.00
per Share; provided, however, that upon the occurrence of any of the events specified in Section 6 hereof, the rights granted
by this Purchase Warrant, including the exercise price per Share and the number of Warrant Shares to be received upon such exercise,
shall be adjusted as therein specified. The term “Exercise Price” shall mean the initial exercise price or the adjusted
exercise price, depending on the context. The term “business day” shall mean a day other than a Saturday, Sunday or any other
day which is a federal legal holiday in the United States or any day on which the Federal Reserve Bank of New York is authorized or required
by law or other governmental action to close, provided that the Federal Reserve Bank of New York shall not be deemed to be authorized
or obligated to be closed due to a “shelter in place,” “non-essential employee” or similar closure of physical
location at the direction of any governmental authority if the bank’s electronic funds transfer systems (including for wire transfers)
are open for use by customers on such day.
2.
Exercise.
2.1
Exercise Form. In order to exercise this Purchase Warrant, the notice of exercise form attached hereto must be duly executed and
completed and delivered to the Company, together with this Purchase Warrant and, unless exercised pursuant to Section 2.2 hereof, payment
of the Exercise Price for the Warrant Shares being purchased payable in cash by wire transfer of immediately available funds to an account
designated by the Company or by certified check or official bank check. If the Purchase Warrant is not exercised at or before 5:00 p.m.,
Eastern time, on the Expiration Date, this Purchase Warrant shall become and be void without further force or effect, and all rights
represented hereby shall cease and expire. Each exercise hereof shall be irrevocable.
2.2
Cashless Exercise. In lieu of exercising this Purchase Warrant by payment of cash or check payable to the order of the Company
pursuant to Section 2.1 above, Holder may elect to receive the number of Warrant Shares equal to the value of this Purchase Warrant (or
the portion thereof being exercised), by surrender of this Purchase Warrant to the Company, together with the exercise form attached
hereto, in which event the Company will issue to Holder a number of Warrant Shares in accordance with the following formula:
Where,
|
X |
= |
The
number of Warrant Shares to be issued to Holder; |
|
Y |
= |
The
number of Warrant Shares that would be issuable upon exercise of this Purchase Warrant in accordance with the terms of this Warrant
if such exercise were by means of a cash exercise rather than a cashless exercise.; |
|
A |
= |
as
applicable, the “Fair Market Value” of a share of Common Stock determined as follows: (i) the VWAP on the Trading Day
immediately preceding the date of the applicable exercise form if such exercise form is (1) both executed and delivered pursuant
to Section 2.2 hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant to Section 2.2 hereof on a Trading
Day prior to the opening of “regular trading hours” (as defined in Rule 600(b)(68) of Regulation NMS promulgated under
the federal securities laws) on such Trading Day, (ii) at the option of the Holder, either (y) the VWAP on the Trading Day immediately
preceding the date of the applicable Exercise Form or (z) the Bid Price of the Common Stock on the principal Trading Market as reported
by Bloomberg L.P. as of the time of the Holder’s execution of the applicable Exercise Form if such Exercise Form is executed
during “regular trading hours” on a Trading Day and is delivered within two (2) hours thereafter (including until two
(2) hours after the close of “regular trading hours” on a Trading Day) pursuant to Section 2.2 hereof, which Bid Price
shall be shown on supporting documents provided by the Holder to the Company within two Trading Days of delivery of the exercise
form, or (iii) the VWAP on the date of the applicable exercise form if the date of such exercise form is a Trading Day and such exercise
form is both executed and delivered pursuant to Section 2.2 hereof after the close of “regular trading hours” on such
Trading Day; and |
|
B |
= |
The
Exercise Price. |
“Bid
Price” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock
is then listed or quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30
a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average
price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not
then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported in the “Pink Sheets”
published by OTC Markets Group, Inc. (or a similar organization or agency succeeding to its functions of reporting prices), the most
recent bid price per share of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock
as determined by an independent appraiser selected in good faith by the Holder and reasonably acceptable to the Company, the fees and
expenses of which shall be paid by the Company.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed
or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30
a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average
price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not
then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported in the “Pink Sheets”
published by OTC Markets Group, Inc. (or a similar organization or agency succeeding to its functions of reporting prices), the daily
volume weighted average price of the Common Stock for such date (or the nearest preceding date), or (d) in all other cases, the fair
market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the Holder and reasonably
acceptable to the Company, the fees and expenses of which shall be paid by the Company.
“Trading
Day” means a day on which the New York Stock Exchange is open for trading.
“Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date
in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, or the New York
Stock Exchange (or any successors to any of the foregoing).
2.3
Legend. Unless the Warrant Shares purchased under this Purchase Warrant have been registered under the Securities Act of 1933,
as amended (the “Securities Act”), each certificate for such Share shall bear the following legend:
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR APPLICABLE STATE LAW. NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED FOR SALE, SOLD OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT AND APPLICABLE STATE LAW WHICH, IN THE OPINION OF COUNSEL TO THE COMPANY, IS AVAILABLE.”
3.
Transfer.
3.1
General Restrictions. The registered Holder of this Purchase Warrant agrees by his, her or its acceptance hereof, that such Holder
will not: (a) sell, transfer, assign, pledge or hypothecate this Purchase Warrant for a period of one hundred eighty (180) days following
the Effective Date to anyone other than: (i) Benchmark or an underwriter or a selected dealer participating in the Offering, or (ii)
the bona fide officers or partners, registered persons or affiliates of Benchmark or of any such underwriter or selected dealer, in each
case in accordance with FINRA Conduct Rule 5110(e), and (b) cause this Purchase Warrant or the securities issuable hereunder to be the
subject of any hedging, short sale, derivative, put or call transaction that would result in the effective economic disposition of this
Purchase Warrant or the securities hereunder, except as provided for in FINRA Rule 5110(e)(2). On and after 180 days after the Effective
Date, transfers to others may be made subject to compliance with or exemptions from applicable securities laws. In order to make any
permitted assignment, the Holder must deliver to the Company the assignment form attached hereto duly executed and completed, together
with the Purchase Warrant and payment of all transfer taxes, if any, payable in connection therewith. The Company shall within five (5)
business days transfer this Purchase Warrant on the books of the Company and shall execute and deliver a new Purchase Warrant or Purchase
Warrants of like tenor to the appropriate assignee(s) expressly evidencing the right to purchase the aggregate number of Warrant Shares
purchasable hereunder or such portion of such number as shall be contemplated by any such assignment.
3.2
Restrictions Imposed by the Act. The securities evidenced by this Purchase Warrant shall not be transferred unless and until:
(i) if required by applicable law, the Company has received the opinion of counsel for the Company that the securities may be transferred
pursuant to an exemption from registration under the Securites Act and applicable state securities laws, or (ii) a registration statement
or a post-effective amendment to the Registration Statement relating to the offer and sale of such securities has been filed by the Company
and declared effective by the Commission and compliance with applicable state securities law has been established.
4.
Reserved.
5.
New Purchase Warrants to be Issued.
5.1
Partial Exercise or Transfer. Subject to the restrictions in Section 3 hereof, this Purchase Warrant may be exercised or assigned
in whole or in part. In the event of the exercise or assignment hereof in part only, upon surrender of this Purchase Warrant for cancellation,
together with the duly executed exercise or assignment form and funds sufficient to pay any Exercise Price and/or transfer tax if exercised
pursuant to Section 2.1 hereto, the Company shall cause to be delivered to the Holder without charge a new Purchase Warrant of like tenor
to this Purchase Warrant in the name of the Holder evidencing the right of the Holder to purchase the number of Warrant Shares purchasable
hereunder as to which this Purchase Warrant has not been exercised or assigned.
5.2
Lost Certificate. Upon receipt by the Company of evidence satisfactory to it of the loss, theft, destruction or mutilation of
this Purchase Warrant and of reasonably satisfactory indemnification or the posting of a bond, determined in the sole discretion of the
Company, the Company shall execute and deliver a new Purchase Warrant of like tenor and date. Any such new Purchase Warrant executed
and delivered as a result of such loss, theft, mutilation or destruction shall constitute a substitute contractual obligation on the
part of the Company.
6.
Adjustments.
6.1
Adjustments to Exercise Price and Number of Securities. The Exercise Price and the number of Warrant Shares underlying the Purchase
Warrant shall be subject to adjustment from time to time as hereinafter set forth provided that the Exercise Price shall not be adjusted
such that it would result in the Warrant Shares being issued at a price below their par value.
6.1.1
Share Dividends; Split Ups. If, after the date hereof, and subject to the provisions of Section 6.3 below, the number of outstanding
shares of Common Stock is increased by a stock dividend payable in Common Stock or by a split up of the Common Stock or other similar
event, then, on the effective day thereof, the number of Warrant Shares purchasable hereunder shall be increased in proportion to such
increase in outstanding shares of Common Stock, and the Exercise Price shall be proportionately decreased.
6.1.2
Aggregation of Shares. If, after the date hereof, and subject to the provisions of Section 6.3 below, the number of outstanding
shares of Common Stock is decreased by a consolidation, combination or reclassification of the Common Stock or other similar event, then,
on the effective date thereof, the number of Warrant Shares purchasable hereunder shall be decreased in proportion to such decrease in
outstanding shares of Common Stock, and the Exercise Price shall be proportionately increased.
6.1.3
Replacement of Securities upon Reorganization, etc. In case of any reclassification or reorganization of the outstanding shares
of Common Stock other than a change covered by Section 6.1.1 or 6.1.2 hereof or that solely affects the par value of the Common Stock,
or in the case of any share reconstruction or amalgamation or consolidation or merger of the Company with or into another corporation
(other than a consolidation or share reconstruction or amalgamation or merger in which the Company is the continuing corporation and
that does not result in any reclassification or reorganization of the outstanding Common Stock), or in the case of any sale or conveyance
to another corporation or entity of the property of the Company as an entirety or substantially as an entirety in connection with which
the Company is dissolved, the Holder of this Purchase Warrant shall have the right thereafter (until the expiration of the right of exercise
of this Purchase Warrant) to receive upon the exercise hereof, for the same aggregate Exercise Price payable hereunder immediately prior
to such event, the kind and amount of shares of stock or other securities or property (including cash) receivable upon such reclassification,
reorganization, share reconstruction or amalgamation, or consolidation, or upon a dissolution following any such sale or transfer, by
a Holder of the number of shares of Common Stock obtainable upon exercise of this Purchase Warrant immediately prior to such event; and
if any reclassification also results in a change in the Common Stock covered by Section 6.1.1 or 6.1.2, then such adjustment shall be
made pursuant to Sections 6.1.1, 6.1.2 and this Section 6.1.3. The provisions of this Section 6.1.3 shall similarly apply to successive
reclassifications, reorganizations, share reconstructions or amalgamations, or consolidations, sales or other transfers.
6.1.4
Changes in Form of Purchase Warrant. This form of Purchase Warrant need not be changed because of any change pursuant to this
Section 6.1, and Purchase Warrants issued after such change may state the same Exercise Price and the same number of Warrant Shares as
are stated in the Purchase Warrants initially issued pursuant to this Agreement. The acceptance by any Holder of the issuance of new
Purchase Warrants reflecting a required or permissive change shall not be deemed to waive any rights to an adjustment occurring after
the Commencement Date or the computation thereof.
6.2
Substitute Purchase Warrant. In case of any consolidation of the Company with, or share reconstruction or amalgamation or merger
of the Company with or into, another corporation (other than a consolidation or share reconstruction or amalgamation or merger which
does not result in any reclassification or change of the outstanding shares of Common Stock), the corporation formed by such consolidation
or share reconstruction or amalgamation shall execute and deliver to the Holder a supplemental Purchase Warrant providing that the holder
of each Purchase Warrant then outstanding or to be outstanding shall have the right thereafter (until the stated expiration of such Purchase
Warrant) to receive, upon exercise of such Purchase Warrant, the kind and amount of shares of stock and other securities and property
receivable upon such consolidation or share reconstruction or amalgamation, by a holder of the number of Common Stock for which such
Purchase Warrant might have been exercised immediately prior to such consolidation, share reconstruction or amalgamation or merger, sale
or transfer. Such supplemental Purchase Warrant shall provide for adjustments which shall be identical to the adjustments provided for
in this Section 6. The above provision of this Section shall similarly apply to successive consolidations or share reconstructions or
amalgamations or mergers.
6.3
Elimination of Fractional Interests. The Company shall not be required to issue certificates representing fractions of Warrant
Shares upon the exercise of the Purchase Warrant, nor shall it be required to issue scrip or pay cash in lieu of any fractional interests,
it being the intent of the parties that all fractional interests shall be eliminated by rounding any fraction up or down, as the case
may be, to the nearest whole number of Warrant Shares or other securities, properties or rights.
7.
Reservation and Listing. The Company shall at all times reserve and keep available out of its authorized Common Stock, solely
for the purpose of issuance upon exercise of the Purchase Warrants, such number of Warrant Shares or other securities, properties or
rights as shall be issuable upon the exercise thereof. The Company covenants and agrees that, upon exercise of the Purchase Warrants
and payment of the Exercise Price therefor, in accordance with the terms hereby, all Warrant Shares and other securities issuable upon
such exercise shall be duly and validly issued, fully paid and nonassessable and not subject to pre-emptive rights of any shareholder.
8.
Certain Notice Requirements.
8.1
Holder’s Right to Receive Notice. Nothing herein shall be construed as conferring upon the Holder the right to vote or consent
or to receive notice as a shareholder for the election of directors or any other matter, or as having any rights whatsoever as a shareholder
of the Company. If, however, at any time prior to the expiration of the Purchase Warrants and their exercise, any of the events described
in Section 8.2 shall occur, then, in one or more of said events, the Company shall deliver to each Holder a copy of each notice relating
to such events given to the other shareholders of the Company at the same time and in the same manner that such notice is given to the
shareholders.
8.2
Events Requiring Notice. The Company shall be required to give the notice described in this Section 8 upon one or more of the
following events: (i) if the Company shall take a record of the holders of its Common Stock for the purpose of entitling them to receive
a dividend or distribution payable otherwise than in cash, or a cash dividend or distribution payable otherwise than out of retained
earnings, as indicated by the accounting treatment of such dividend or distribution on the books of the Company;(ii) the Company shall
offer to all the holders of its Common Stock any additional shares of capital stock of the Company or securities convertible into or
exchangeable for shares of capital stock of the Company, or any option, right or warrant to subscribe therefor or (iii) a dissolution,
liquidation or winding up of the Company (other than in connection with a consolidation or share reconstruction or amalgamation) or a
sale of all or substantially all of its property, assets and business shall be proposed.
8.3
Notice of Change in Exercise Price. The Company shall, promptly after an event requiring a change in the Exercise Price pursuant
to Section 6 hereof, send notice to the Holder of such event and change (“Price Notice”). The Price Notice shall describe
the event causing the change and the method of calculating same.
8.4
Transmittal of Notices. All notices, requests, consents and other communications under this Purchase Warrant shall be in writing
and shall be deemed to have been duly made when hand delivered, mailed by express mail or private courier service or sent via email:
(i) if to the registered Holder of this Purchase Warrant, to the address of such Holder as shown on the books of the Company, or (ii)
if to the Company, to following address or to such other address as the Company may designate by notice to the Holder:
Nano
Nuclear Energy Inc.
10
Times Square, 30th Floor
New
York, New York 10018 1411 Broadway, 38th Floor
New
York, New York 10018
Attention:
Jay Jiang Yu and James Walker, Chief Executive Officer and President
Email:
jay@nanonuclearenergy.com and james@nanonuclearenergy.com
9.
Miscellaneous.
9.1
Amendments. The Company and Benchmark may from time to time supplement or amend this Purchase Warrant without the approval of
any of other holders of any other Purchase Warrants issued pursuant to the Underwriting Agreement in order to cure any ambiguity, to
correct or supplement any provision contained herein that may be defective or inconsistent with any other provisions herein, or to make
any other provisions in regard to matters or questions arising hereunder that the Company and Benchmark may jointly deem necessary or
desirable in their discretion.
9.2
Headings. The headings contained herein are for the sole purpose of convenience of reference, and shall not in any way limit or
affect the meaning or interpretation of any of the terms or provisions of this Purchase Warrant.
9.3.
Entire Agreement. This Purchase Warrant constitutes the entire agreement of the Company and the Holder with respect to the subject
matter hereof, and supersedes all prior promises, agreements and understandings, oral and written, with respect to the subject matter
hereof.
9.4
Binding Effect. This Purchase Warrant shall inure solely to the benefit of and shall be binding upon, the Holder and the Company
and their permitted assignees, respective successors, legal representative and assigns, and no other person shall have or be construed
to have any legal or equitable right, remedy or claim under or in respect of or by virtue of this Purchase Warrant or any provisions
herein contained.
9.5
Governing Law; Submission to Jurisdiction; Trial by Jury. This Purchase Warrant shall be governed by and construed and enforced
in accordance with the laws of the State of New York, without giving effect to conflict of laws principles thereof. The Company hereby
agrees that any action, proceeding or claim against it arising out of, or relating in any way to this Purchase Warrant shall be brought
and enforced in the courts located in New York, New York, or in the United States District Court located in New York, New York, and irrevocably
submits to such jurisdiction, which jurisdiction shall be exclusive. The Company hereby waives any objection to such exclusive jurisdiction
and that such courts represent an inconvenient forum. Any process or summons to be served upon the Company may be served by transmitting
a copy thereof by registered or certified mail, return receipt requested, postage prepaid, addressed to it at the address set forth in
Section 8 hereof. Such mailing shall be deemed personal service and shall be legal and binding upon the Company in any action, proceeding
or claim. The Company and the Holder agree that the prevailing party(ies) in any such action shall be entitled to recover from the other
party(ies) all of its reasonable attorneys’ fees and expenses relating to such action or proceeding and/or incurred in connection
with the preparation therefor. The Company (on its behalf and, to the extent permitted by applicable law, on behalf of its stockholders
and affiliates) and the Holder hereby irrevocably waive, to the fullest extent permitted by applicable law, any and all right to trial
by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
9.6
Waiver, etc. The failure of the Company or the Holder to at any time enforce any of the provisions of this Purchase Warrant shall
not be deemed or construed to be a waiver of any such provision, nor to in any way affect the validity of this Purchase Warrant or any
provision hereof or the right of the Company or any Holder to thereafter enforce each and every provision of this Purchase Warrant. No
waiver of any breach, non-compliance or non-fulfillment of any of the provisions of this Purchase Warrant shall be effective unless set
forth in a written instrument executed by the party or parties against whom or which enforcement of such waiver is sought; and no waiver
of any such breach, non-compliance or non-fulfillment shall be construed or deemed to be a waiver of any other or subsequent breach,
non-compliance or non-fulfillment.
9.7
Exchange Agreement. As a condition of the Holder’s receipt and acceptance of this Purchase Warrant, Holder agrees that,
at any time prior to the complete exercise of this Purchase Warrant by Holder, if the Company and Benchmark enter into an agreement (“Exchange
Agreement”) pursuant to which they agree that all outstanding Purchase Warrants will be exchanged for securities or cash or
a combination of both, then Holder shall agree to such exchange and become a party to the Exchange Agreement.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the Company has caused this Representative’s Warrant to be signed by its duly authorized officer as of the 10th
day of May, 2024.
NANO
NUCLEAR ENERGY, INC. |
|
|
|
|
By: |
/s/
James Walker |
|
Name: |
James
Walker |
|
Title: |
Chief
Executive Officer |
|
NOTICE
OF EXERCISE
TO:
Nano Nuclear Energy, Inc.
Date:
__________, 20___
The
undersigned hereby elects irrevocably to exercise the Purchase Warrant for [●] shares (the “Shares”) of common
stock, par value $0.0001 per share, of Nano Nuclear Energy, Inc., a Nevada corporation (the “Company”), and hereby
makes payment of $[●] (at the rate of $[●] per Share) in payment of the Exercise Price pursuant thereto. Please issue the
Shares as to which this Purchase Warrant is exercised in accordance with the instructions given below and, if applicable, a new Purchase
Warrant representing the number of Shares for which this Purchase Warrant has not been exercised.
or
The
undersigned hereby elects irrevocably to convert its right to purchase [●] Shares of the Company under the Purchase Warrant for
[●] Shares, as determined in accordance with the following formula:
Where,
|
X |
= |
The
number of Shares to be issued to Holder; |
|
|
|
|
|
Y |
= |
The
number of Shares for which the Purchase Warrant is being exercised; |
|
|
|
|
|
A |
= |
The
Fair Market Value of one Share (which is equal to $[●]); and |
|
|
|
|
|
B |
= |
The
Exercise Price (which is equal to $[●] per Share) |
The
undersigned agrees and acknowledges that the calculation set forth above is subject to confirmation by the Company and any disagreement
with respect to the calculation shall be resolved by the Company in its sole discretion. Please issue the Shares as to which this Purchase
Warrant is exercised in accordance with the instructions given below and, if applicable, a new Purchase Warrant representing the number
of Shares for which this Purchase Warrant has not been converted.
Signature ________________________________________
Signature
Guaranteed _______________________________
INSTRUCTIONS
FOR REGISTRATION OF SECURITIES
Name: |
_______________________________________ |
|
|
|
|
|
(Print in Block Letters) |
|
|
|
|
Address: |
_______________________________________ |
|
|
|
|
|
_______________________________________ |
|
|
|
|
|
_______________________________________ |
|
NOTICE:
The signature to this form must correspond with the name as written upon the face of the Purchase Warrant without alteration or enlargement
or any change whatsoever, and must be guaranteed by a bank, other than a savings bank, or by a trust company or by a firm having membership
on a registered national securities exchange.
FORM
OF ASSIGNMENT
(To
be executed by the registered Holder to effect a transfer of the within Purchase Warrant):
FOR
VALUE RECEIVED, __________________ does hereby sell, assign and transfer unto the right to purchase shares of common stock, par value
$0.0001 per share, of Nano Nuclear Energy, Inc., a Nevada corporation (the “Company”), evidenced by the Purchase Warrant
to _________________________________________________ and does hereby authorize the Company to transfer such right on the books of the
Company.
Dated:
__________, 20__
Signature ________________________________________
Signature
Guaranteed _______________________________
NOTICE:
The signature to this form must correspond with the name as written upon the face of the within Purchase Warrant without alteration or
enlargement or any change whatsoever, and must be guaranteed by a bank, other than a savings bank, or by a trust company or by a firm
having membership on a registered national securities exchange.
Exhibit 99.1
NANO
Nuclear Energy Announces Closing of
$10,250,000
Initial Public Offering
First
Portable Nuclear Microreactor Company Publicly Listed in the U.S.
NANO
Nuclear seeking to be a diversified and vertically integrated technology-driven nuclear energy company with a focus on portable micro
nuclear reactors, nuclear fuel fabrication and nuclear fuel transportation.
New
York, N.Y. May 13, 2024 -- NANO Nuclear Energy Inc. (NASDAQ: NNE) (“NANO Nuclear”), an emerging
vertically integrated microreactor and advanced nuclear technology company led by a world-class nuclear engineering team developing
proprietary, portable, and clean energy solutions, is pleased to announce the closing of its initial public offering of 2,562,500
shares of common stock at a price to the public of $4.00 per share on May 10, 2024.
The
gross proceeds to NANO Nuclear from the offering, before deducting underwriting discounts and commissions and other offering expenses,
were $10,250,000, and net proceeds were approximately $9,000,000. The shares sold in the offering began trading on the Nasdaq Capital
Market under the symbol “NNE” on May 8, 2024.
NANO
Nuclear believes that it is the first U.S. publicly listed company focusing on the design and development of portable nuclear microreactors.
According to the U.S. Department of Energy, microreactor designs vary, but most are designed to
produce 1 to 20 megawatts of thermal energy that could be used directly as heat or converted to electric power. NANO Nuclear’s
current microreactor designs are for reactors that would produce 1 to 2 megawatts of electric output.
In
addition, unlike other small or micro nuclear reactor companies, NANO Nuclear is seeking to become diversified and vertically integrated
with multiple potential streams of revenue, including microreactor development, nuclear fuel fabrication, nuclear fuel transportation
and nuclear industry consulting services.
NANO
Nuclear intends to use the net proceeds from its initial public offering to continue the research and development of its proprietary
microreactor designs, ‘ZEUS’ and ‘ODIN’; advance its exclusive patented license to transport commercial
quantities of HALEU fuel needed for the future of the advanced nuclear industry; develop a domestic source for a High-Assay,
Low-Enriched Uranium (HALEU) fuel fabrication pipeline for NANO Nuclear’s own microreactors and the broader advanced
nuclear reactor industry, as well as general corporate purposes and working capital.
The
Benchmark Company, LLC acted as the sole book-running representative for the offering. Ellenoff Grossman & Schole LLP acted
as counsel to NANO Nuclear. Lucosky Brookman LLP acted as counsel to The Benchmark Company. Withum Smith+Brown PC are NANO Nuclear’s
registered independent auditors.
A
registration statement relating to NANO Nuclear’s initial public offering was filed with the Securities and Exchange Commission
and was declared effective on May 6, 2024. This registration statement can be obtained by visiting the SEC website at www.sec.gov. Please
see such registration statement for additional information regarding NANO Nuclear.
This
press release shall not constitute an offer to sell or the solicitation of an offer to buy these securities, nor shall there be any sale
of these securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or
qualification under the securities laws of any such state or jurisdiction.
About
NANO Nuclear Energy Inc.
NANO
Nuclear Energy Inc. (NASDAQ: NNE) is an emerging, advanced technology-driven nuclear energy company seeking to become a commercially
focused, diversified, and vertically integrated company across four business lines: (i) cutting edge portable microreactor technology,
(ii) nuclear fuel fabrication, (iii) nuclear fuel transportation and (iv) nuclear industry consulting services. NANO Nuclear believes
it is the first portable nuclear microreactor company to be listed publicly in the U.S.
Led
by a world-class nuclear engineering team, NANO Nuclear’s products in technical development are “ZEUS”, a solid core
battery reactor, and “ODIN”, a low-pressure coolant reactor, each representing advanced developments in clean energy
solutions that are portable, on-demand capable, advanced nuclear microreactors.
Advanced
Fuel Transportation Inc. (AFT), a NANO Nuclear subsidiary, is led by former executives from the largest transportation company in
the world aiming to build a North American transportation company that will provide commercial quantities of HALEU fuel to small modular
reactors, microreactor companies, national laboratories, military, and DOE programs. Through NANO Nuclear, AFT is the exclusive licensee
of a patented high-capacity HALEU fuel transportation basket developed by three major U.S. national nuclear laboratories and funded by
the Department of Energy. Assuming development and commercialization, AFT is expected to form part of the only vertically integrated
nuclear fuel business of its kind in North America.
HALEU
Energy Fuel Inc. (HEF), a NANO Nuclear subsidiary, is focusing on the future development of a domestic source for a High-Assay, Low-Enriched
Uranium (HALEU) fuel fabrication pipeline for NANO Nuclear’s own microreactors as well as the broader advanced nuclear reactor
industry.
For
more corporate information please visit: https://NanoNuclearEnergy.com/
PLEASE
FOLLOW OUR SOCIAL MEDIA PAGES HERE:
NANO
Nuclear Energy TWITTER
NANO
Nuclear Energy LINKEDIN
NANO
Nuclear Energy YOUTUBE
Cautionary
Note Regarding Forward Looking Statements
This
news release and statements of NANO Nuclear’s management in connection with this news release or related events contain or may
contain “forward-looking statements” within the meaning of Section 21E of the Securities Exchange Act of 1934, as amended,
and the Private Securities Litigation Reform Act of 1995. In this context, forward-looking statements mean statements related to future
events, which may impact our expected future business and financial performance, and often contain words such as “expects”,
“anticipates”, “intends”, “plans”, “believes”, “potential”, “will”,
“should”, “seek,” “could”, “would” or “may” and other words of similar meaning.
These forward-looking statements (including statements regarding our business plans and objectives as described herein) are based on
information available to us as of the date of this news release and represent management’s current views and assumptions. Forward-looking
statements are not guarantees of future performance, events or results and involve known and unknown risks, uncertainties and other factors,
which may be beyond our control. For NANO Nuclear, particular risks and uncertainties that could cause our actual future results to differ
materially from those expressed in our forward-looking statements include but are not limited to the following: (i) the early-stage nature
of our company and the significant time and funding it will take to reach the regulatory approval and revenue generating stages; (ii)
risks related to our U.S. Department of Energy (“DOE”) nuclear fuel manufacturing submission and the development of new or
advanced technology, including difficulties with design and testing, cost overruns, development of competitive technology, (iii) our
ability to obtain contracts and funding to be able to continue operations; (iv) risks related to uncertainty regarding our ability to
commercially deploy a competitive advanced nuclear microreactor technology, (iv) risks related to the impact of government regulation
and policies including by the DOE and the U.S. Nuclear Regulatory Commission; and similar risks and uncertainties associated with the
business of an early-stage up business operating a highly regulated industry. These risk factors may not constitute all factors that
could cause actual results to differ from those discussed in any forward-looking statement. Also, these
and other risks concerning our programs and operations are described in additional detail in our Registration Statement on Form S-1,
which was declared effective on May 6, 2024, and our other SEC filings, which can be accessed at https://www.sec.gov and
our website at https://ir.nanonuclearenergy.com/financial-information/sec-filings.
Accordingly, readers are cautioned not to place undue reliance on these forward-looking statements, which apply only as of the
date of this news release, and all forward-looking statements should not be relied upon as a predictor of actual results. We do not undertake
and expressly disclaim any obligation to update our forward-looking statements to reflect events or circumstances that may arise after
the date of this news release, except as required by law.
For
further information, please contact:
Email:
Info@NanoNuclearEnergy.com
Business
Tel: (212) 634-9206
v3.24.1.1.u2
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Document Period End Date |
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Nuclear Energy Inc.
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