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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 17, 2024
Spectaire Holdings INC.
(Exact name of registrant as specified in its charter)
Delaware |
|
001-40976 |
|
98-1578608 |
(State or other jurisdiction
of incorporation) |
|
(Commission File Number) |
|
(I.R.S. Employer
Identification No.) |
155 Arlington St.,
Watertown, MA |
|
02472 |
(Address of principal executive offices) |
|
(Zip Code) |
(508) 213-8991
(Registrant’s telephone number, including
area code)
Not Applicable
(Former name or former address, if changed since
last report)
Check the appropriate box below if the Form 8-K
is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ |
Written communication 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-commencements 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 Symbols |
|
Name of each exchange on which registered |
Common stock, par value $0.0001 per share |
|
SPEC |
|
The Nasdaq Stock Market LLC |
Redeemable Warrants, each whole warrant exercisable for one share of common stock, at an exercise price of $11.50 per share |
|
SPECW |
|
The Nasdaq Stock Market LLC |
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the
Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☒
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act.
Item 1.01. Entry into a Material Definitive
Agreement
On May 17, 2024, Spectaire
Holdings Inc. (the “Company”) entered into the Standby Equity Purchase Agreement (“SEPA”) with YA II PN, LTD,
a Cayman Islands exempt limited partnership (“Yorkville”) pursuant to which the Company has the right to sell to Yorkville
up to $25.0 million of its shares of common stock, par value $0.0001 (“Common Stock”), subject to certain limitations and
conditions set forth in the SEPA, from time to time during the term of the SEPA. The Company also entered into a Registration Rights Agreement
with Yorkville pursuant to which it will register the resale of shares of Common Stock issued to Yorkville pursuant to the SEPA. Sales
of the shares of Common Stock to Yorkville under the SEPA, and the timing of any such sales, are at the Company’s option, and the
Company is under no obligation to sell any shares of Common Stock to Yorkville under the SEPA.
Upon the satisfaction of the
conditions to Yorkville’s purchase obligation set forth in the SEPA, including having a registration statement registering the resale
of the shares of Common Stock issuable under the SEPA declared effective by the Securities and Exchange Commission, the Company will have
the right, but not the obligation, from time to time at its discretion until the SEPA is terminated to direct Yorkville to purchase a
specified number of shares of common stock (“Advance”) by delivering written notice to Yorkville (“Advance Notice”).
While there is no mandatory minimum amount for any Advance, it may not exceed the greater of (i) an amount equal to 100% of the average
of the daily traded amount during the five consecutive trading days immediately preceding an Advance Notice, and (ii) 500,000 shares of
Common Stock.
The shares of Common Stock
purchased pursuant to an Advance delivered by the Company will be purchased at a price equal to 97% of the lowest daily VWAP of the shares
of Common Stock during the three consecutive trading days commencing on the date of the delivery of the Advance Notice, other than the
daily VWAP on a day in which the daily VWAP is less than a minimum acceptable price as stated by the Company in the Advance Notice or
there is no VWAP on the subject trading day. The Company may establish a minimum acceptable price in each Advance Notice below which the
Company will not be obligated to make any sales to Yorkville. “VWAP” is defined as the daily volume weighted average price
of the shares of Common Stock for such trading day on the Nasdaq Stock Market during regular trading hours as reported by Bloomberg L.P.
Under the applicable Nasdaq
rules, in no event may the Company issue to Yorkville under the SEPA shares of Common Stock equal to greater than 19.99% of the shares
of Common Stock outstanding immediately prior to the execution of the SEPA (the “Exchange Cap”), unless (i) the Company obtains
stockholder approval to issue shares of Common Stock in excess of the Exchange Cap in accordance with applicable Nasdaq rules, or (ii)
the average price per share paid by Yorkville for all of the shares of Common Stock that the Company directs Yorkville to purchase from
the Company pursuant to the SEPA, if any, equals or exceeds the lower of (a) the official closing price of the Common Stock on Nasdaq
immediately preceding the execution of the SEPA and (b) the average official closing price of the Common Stock on Nasdaq for the five
consecutive trading days immediately preceding the execution of the SEPA, adjusted as required by Nasdaq. Moreover, the Company may not
issue or sell any shares of Common Stock to Yorkville under the SEPA which, when aggregated with all other shares of Common Stock then
beneficially owned by Yorkville and its affiliates (as calculated pursuant to Section 13(d) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), and Rule 13d-3 thereunder), would result in Yorkville beneficially owning more than 4.99% of
the outstanding shares of Common Stock.
Actual sales of shares of
Common Stock to Yorkville as an Advance under the SEPA will depend on a variety of factors to be determined by the Company from time to
time, which may include, among other things, market conditions, the trading price of the Common Stock and determinations by the Company
as to the appropriate sources of funding for our business and operations.
The SEPA will automatically
terminate on the earliest to occur of (i) the 36-month anniversary of the date of the SEPA or (ii) the date on which the Company shall
have made full payment of Advances pursuant to the SEPA. The Company has the right to terminate the SEPA at no cost or penalty upon five
(5) trading days’ prior written notice to Yorkville, provided that there are no outstanding Advance Notices for which shares of
Common Stock need to be issued.
As consideration for Yorkville’s
commitment to purchase the shares of Common Stock pursuant the SEPA, the Company paid Yorkville, (i) a structuring fee in the amount of
$25,000 and (ii) a commitment fee equal to 233,601 shares, to be issued within three trading days of the date of the SEPA, and $125,000,
to be paid on the three-month anniversary of the date of the SEPA.
The SEPA contains customary
representations, warranties, conditions and indemnification obligations of the parties, which were made only for purposes of the SEPA
and as of specific dates, were solely for the benefit of the parties, and may be subject to limitations or exceptions agreed upon by the
parties.
The net proceeds under the
SEPA to the Company will depend on the frequency and prices at which Common Stock is sold. The Company expects that proceeds received
from such sales will be used primarily for working capital and general corporate purposes.
This Current Report on Form
8-K shall not constitute an offer to sell or a solicitation of an offer to buy any shares of Common Stock.
Item 2.03 Creation of a Direct Financial Obligation
or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information set forth
in Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.
Item 3.02 Unregistered Sales of Equity Securities
The information set forth
in Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.
In the SEPA, Yorkville represented
to the Company, among other things, that it is an “accredited investor” (as such term is defined in Rule 501(a) of Regulation
D under the Securities Act). The securities referred to in this Current Report on Form 8-K are being issued and sold by the Company to
Yorkville in reliance upon the exemption from the registration requirements of the Securities Act afforded by Section 4(a)(2) of the Securities
Act.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this Current Report to be signed on its behalf by the undersigned hereunto duly authorized.
Dated: May 21, 2024
|
SPECTAIRE HOLDINGS INC. |
|
|
|
|
By: |
/s/ Brian Semkiw |
|
Name: |
Brian Semkiw |
|
Title: |
Chief Executive Officer |
3
Exhibit 10.1
STANDBY EQUITY PURCHASE AGREEMENT
THIS STANDBY EQUITY PURCHASE
AGREEMENT (this “Agreement”) dated as of May 17, 2024 is made by and between YA II PN, LTD., a Cayman Islands
exempt limited partnership (the “Investor”), and SPECTAIRE HOLDINGS INC., a company incorporated under the laws
of the state of Delaware (the “Company”). The Investor and the Company may be referred to herein individually as a
“Party” and collectively as the “Parties.”
WHEREAS, the Parties
desire that, upon the terms and subject to the conditions contained herein, the Company shall have the right to issue and sell to the
Investor, from time to time as provided herein, and the Investor shall purchase from the Company, up to $25 million in aggregate gross
purchase price of newly issued fully paid shares of the Company’s Common Stock, par value $0.0001 per share (the “Common
Shares”);
WHEREAS, the Common
Shares are listed for trading on the Nasdaq Stock Market under the symbol “SPEC;”
WHEREAS, the offer
and sale of the Common Shares issuable hereunder will be made in reliance upon Section 4(a)(2) under the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder (the “Securities Act”), or upon such other exemption from the
registration requirements of the Securities Act as may be available with respect to any or all of the transactions to be made hereunder;
and
WHEREAS, the Parties
are concurrently entering into a Registration Rights Agreement in the form attached as Exhibit A hereto (the “Registration
Rights Agreement”), pursuant to which the Company shall register the resale of the Registrable Securities (as defined in the
Registration Rights Agreement), upon the terms and subject to the conditions set forth therein.
NOW, THEREFORE,
the Parties hereto agree as follows:
Article I. Certain Definitions
Capitalized terms used in this
Agreement shall have the meanings ascribed to such terms in Annex I hereto, and hereby made a part hereof, or as otherwise set
forth in this Agreement.
Article II. Advances
Section 2.01 Advances;
Mechanics. Upon the terms and subject to the conditions of this Agreement, during the Commitment Period, the Company, at its sole
discretion, shall have the right, but not the obligation, to issue and sell to the Investor, and the Investor shall subscribe for and
purchase from the Company, Advance Shares by the delivery to the Investor of Advance Notices on the following terms:
| (a) | Advance Notice. At any time during the Commitment Period the Company may require the Investor to
purchase Shares by delivering an Advance Notice to the Investor, subject to the satisfaction or waiver by the Investor of the conditions
set forth in Annex II, and in accordance with the following provisions: |
| (i) | The Company shall, in its sole discretion, select the number of Advance Shares, not to exceed the Maximum
Advance Amount (unless otherwise agreed to in writing by the Company and the Investor), it desires to issue and sell to the Investor in
each Advance Notice, the time it desires to deliver each Advance Notice. |
| (ii) | There shall be no mandatory minimum Advances and there shall be no non-usages fee for not utilizing the
Commitment Amount or any part thereof. |
| (b) | Date of Delivery of Advance Notice. Advance Notices shall be delivered in accordance with the instructions
set forth on the bottom of Exhibit B attached hereto. An Advance Notice shall be deemed delivered on (i) the day it is received
by the Investor if such notice is received by e-mail at or before 9:00 a.m. New York City time (or at such later time if agreed to by
the Investor in its sole discretion), or (ii) the immediately succeeding day if it is received by e-mail after 9:00 a.m. New York City
time. Upon receipt of an Advance Notice, the Investor shall promptly provide written confirmation (which may be by e-mail) of receipt
of such Advance Notice. |
Section 2.02 Advance Limitations,
Regulatory. Regardless of the Advance requested by the Company in an Advance Notice, the final number of Shares to be issued and sold
pursuant to such Advance Notice shall be reduced (if at all) in accordance with each of the following limitations:
| (a) | Ownership Limitation; Commitment Amount. At the request of the Company, the Investor will inform
the Company in writing of the number of Common Shares the Investor currently beneficially owns. At the request of the Investor, the Company
shall promptly confirm orally or in writing to the Investor the number of Common Shares then outstanding. Notwithstanding anything to
the contrary contained in this Agreement, the Investor shall not be obligated to purchase or acquire, and shall not purchase or acquire,
any Common Shares under this Agreement which, when aggregated with all other Common Shares beneficially owned by the Investor and its
affiliates (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder), would result in the beneficial
ownership by the Investor and its affiliates (on an aggregated basis) to exceed 4.99% of the then outstanding voting power or number of
Common Shares (the “Ownership Limitation”). In connection with each Advance Notice, any portion of an Advance that
would (i) cause the Investor to exceed the Ownership Limitation or (ii) cause the aggregate number of Shares issued and sold to the Investor
hereunder to exceed the Commitment Amount shall automatically be withdrawn with no further action required by the Company, and such Advance
Notice shall be deemed automatically modified to reduce the Advance by an amount equal to such withdrawn portion; provided that in the
event of any such automatic withdrawal and automatic modification, the Investor will promptly notify the Company of such event. |
| (b) | Registration Limitation. In no event shall an Advance exceed the number of Common Shares registered
in respect of the transactions contemplated hereby under the Registration Statement then in effect (the “Registration Limitation”).
In connection with each Advance Notice, any portion of an Advance that would exceed the Registration Limitation shall automatically be
withdrawn with no further action required by the Company and such Advance Notice shall be deemed automatically modified to reduce the
aggregate amount of the requested Advance by an amount equal to such withdrawn portion; provided that in the event of any such automatic
withdrawal and automatic modification, the Investor will promptly notify the Company of such event. |
| (c) | Compliance with Rules of Principal Market. Notwithstanding anything to the contrary herein, the
Company shall not effect any sales under this Agreement and the Investor shall not have the obligation to purchase Common Shares under
this Agreement to the extent (but only to the extent) that after giving effect to such purchase and sale the aggregate number of Common
Shares issued under this Agreement would exceed 19.99% of the aggregate number of Common Shares issued and outstanding as of the Effective
Date of this Agreement, which number shall be reduced, on a share-for-share basis, by the number of Common Shares issued or issuable pursuant
to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under the applicable
rules of the Principal Market (such maximum number of shares, the “Exchange Cap”) provided that, the Exchange
Cap will not apply if (a) the Company’s stockholders have approved the issuance of Common Shares pursuant to this Agreement in excess
of the Exchange Cap in accordance with the applicable rules of the Principal Market, or (b) the Average Price of all applicable sales
of Common Shares hereunder (including any sales covered by an Advance Notice that has been delivered prior to the determination of whether
this clause (b) applies) equals or exceed the lower of (i) the Nasdaq Official Closing Price (as
reflected on Nasdaq.com) immediately preceding the Effective Date; or (ii) the average Nasdaq Official Closing Price for the five Trading
Days immediately preceding the Effective Date. In connection with each Advance Notice, any portion of an Advance that would exceed
the Exchange Cap shall automatically be withdrawn with no further action required by the Company and such Advance Notice shall be deemed
automatically modified to reduce the aggregate amount of the requested Advance by an amount equal to such withdrawn portion in respect
of each Advance Notice. |
Section 2.03 Advance Limitations,
Minimum Acceptable Price.
| (a) | With respect to each Advance Notice the Company may notify the Investor of the Minimum Acceptable Price
with respect to such Advance by indicating a Minimum Acceptable Price on such Advance Notice. If no Minimum Acceptable Price is specified
in an Advance Notice, then no Minimum Acceptable Price shall be in effect in connection with such Advance. Each Trading Day during a Pricing
Period for which (A) with respect to each Advance Notice with a Minimum Acceptable Price, the VWAP of the Common Shares is below the Minimum
Acceptable Price in effect with respect to such Advance Notice, or (B) there is no VWAP (each such day, an “Excluded Day”),
shall result in an automatic reduction to the number of Advance Shares set forth in such Advance Notice by 33% (the resulting amount of
each Advance being the “Adjusted Advance Amount”), and each Excluded Day shall be excluded from the Pricing Period
for purposes of determining the Market Price. |
| (b) | The total Advance Shares in respect of each Advance with any Excluded Day(s) (after reductions have been
made to arrive at the Adjusted Advance Amount, if any) shall be increased by such number of Common Shares (the “Additional Shares”)
equal to greater of (a) the number of Common Shares sold by the Investor on such Excluded Day(s), if any, or (b) such number of Common
Shares elected to be subscribed for by the Investor, and the subscription price per share for each Additional Share shall be equal to
the Minimum Acceptable Price in effect with respect to such Advance Notice multiplied by 97%, provided that this increase shall not cause
the total Advance Shares to exceed the amount set forth in the original Advance Notice or any limitations set forth in Section 2.02. |
Section 2.04 Unconditional
Contract. Notwithstanding any other provision in this Agreement, the Company and the Investor acknowledge and agree that upon the
Investor’s receipt of a valid Advance Notice from the Company the Parties shall be deemed to have entered into an unconditional
contract binding on both Parties for the purchase and sale of Advance Shares pursuant to such Advance Notice in accordance with the terms
of this Agreement and (i) subject to Applicable Laws and (ii) subject to Section 6.20, the Investor may sell Common Shares after
receipt of an Advance Notice, including during a Pricing Period.
Section 2.05 Closings.
The closing of each Advance and each sale and purchase of Advance Shares (each, a “Closing”) shall take place as soon
as practicable on each applicable Advance Date in accordance with the procedures set forth below. The Company acknowledges that the Purchase
Price is not known at the time an Advance Notice is delivered but shall be determined on each Closing based on the daily prices of the
Common Shares that are the inputs to the determination of the Purchase Price. In connection with each Closing, the Company and the Investor
shall fulfill each of its obligations as set forth below:
| (a) | On or prior to each Advance Date, the Investor shall deliver to the Company a written document, in the
form attached hereto as Exhibit C (each a “Settlement Document”), setting forth the final number of Shares to be purchased
by the Investor (taking into account any adjustments pursuant to the terms hereof, the Market Price, the Purchase Price, the aggregate
proceeds to be paid by the Investor to the Company, and a report by Bloomberg, L.P. indicating the VWAP for each of the Trading Days during
the Pricing Period (or, if not reported on Bloomberg, L.P., another reporting service reasonably agreed to by the parties), in each case
in accordance with the terms and conditions of this Agreement. |
| (b) | Promptly after receipt of the Settlement Document with respect to each Advance (and, in any event, not
later than one Trading Day after such receipt), the Company will, or will cause its transfer agent to, electronically transfer such number
of Advance Shares to be purchased by the Investor (as set forth in the Settlement Document) by crediting the Investor’s account
or its designee’s account at the Depository Trust Company through its Deposit Withdrawal at Custodian System or by such other means
of delivery as may be mutually agreed upon by the parties hereto, and transmit notification to the Investor that such share transfer has
been requested. Promptly upon receipt of such notification, the Investor shall pay to the Company the aggregate purchase price of the
Shares (as set forth in the Settlement Document) in cash in immediately available funds to an account designated by the Company in writing
and transmit notification to the Company that such funds transfer has been requested. No fractional shares shall be issued, and any fractional
amounts shall be rounded to the next higher whole number of shares. To facilitate the transfer of the Common Shares by the Investor, the
Common Shares will not bear any restrictive legends so long as there is an effective Registration Statement covering the resale of such
Common Shares (it being understood and agreed by the Investor that notwithstanding the lack of restrictive legends, the Investor may only
sell such Common Shares pursuant to the Plan of Distribution set forth in the Prospectus included in the Registration Statement and otherwise
in compliance with the requirements of the Securities Act (including any applicable prospectus delivery requirements) or pursuant to an
available exemption). |
| (c) | On or prior to the Advance Date, each of the Company and the Investor shall deliver to the other all documents,
instruments and writings expressly required to be delivered by either of them pursuant to this Agreement in order to implement and effect
the transactions contemplated herein. |
| (d) | Notwithstanding anything to the contrary in this Agreement, if on any day during the Pricing Period (i)
the Company notifies Investor that a Material Outside Event has occurred, or (ii) the Company notifies the Investor of a Black Out Period,
the parties agree that any pending Advance shall end and the final number of Advance Shares to be purchased by the Investor at the Closing
for such Advance shall be equal to the number of Common Shares sold by the Investor during the applicable Pricing Period prior to the
notification from the Company of a Material Outside Event or Black Out Period. |
Section 2.06 Hardship.
| (a) | In the event the Investor sells Common Shares after receipt of an Advance Notice and the Company fails
to perform its obligations as mandated in this Agreement, the Company agrees that in addition to and in no way limiting the rights and
obligations set forth in Article V hereto and in addition to any other remedy to which the Investor is entitled at law or in equity, including,
without limitation, specific performance, it will hold the Investor harmless against any loss, claim, damage, or expense (including reasonable
legal fees and expenses), as incurred, arising out of or in connection with such default by the Company and acknowledges that irreparable
damage may occur in the event of any such default. It is accordingly agreed that the Investor shall be entitled to an injunction or injunctions
to prevent such breaches of this Agreement and to specifically enforce (subject to Applicable Laws and the rules of the Principal Market),
without the posting of a bond or other security, the terms and provisions of this Agreement. |
Article III. Representations
and Warranties of the Investor
The Investor hereby makes
the following representations, warrants, and covenants to the Company:
Section 3.01 Organization
and Authorization. The Investor is duly organized, validly existing and in good standing under the laws of the Cayman Islands and
has the requisite corporate power and authority to enter into and perform its obligations under the Transaction Documents to which it
is a party and to purchase or acquire the Shares in accordance with the terms hereof. The decision to invest and the execution and delivery
of the Transaction Documents to which it is a party by the Investor, the performance by the Investor of its obligations hereunder and
the consummation by the Investor of the transactions contemplated hereby have been duly authorized and require no other proceedings on
the part of the Investor. The undersigned has the right, power and authority to execute and deliver the Transaction Documents to which
it is a party and all other instruments on behalf of the Investor or its shareholders. This Agreement and the Transaction Documents to
which it is a party have been duly executed and delivered by the Investor and, assuming the execution and delivery hereof and acceptance
thereof by the Company, will constitute the legal, valid and binding obligations of the Investor, enforceable against the Investor in
accordance with its terms.
Section 3.02 Evaluation
of Risks. The Investor has such knowledge and experience in financial, tax and business matters as to be capable of evaluating the
merits and risks of, and bearing the economic risks entailed by, an investment in the Shares and of protecting its interests in connection
with the transactions contemplated hereby. The Investor acknowledges and agrees that its investment in the Company involves a high degree
of risk, and that the Investor may lose all or a part of its investment.
Section 3.03 No Legal,
Investment or Tax Advice from the Company. The Investor acknowledges that it had the opportunity to review the Transaction Documents
and the transactions contemplated by the Transaction Documents with its own legal counsel and investment and tax advisors. The Investor
is relying solely on such counsel and advisors and not on any statements or representations of the Company or any of the Company’s
representatives or agents for legal, tax, investment or other advice with respect to the Investor’s acquisition of Shares hereunder,
the transactions contemplated by this Agreement or the laws of any jurisdiction, and the Investor acknowledges that the Investor may lose
all or a part of its investment.
Section 3.04 Investment
Purpose. The Investor is acquiring the Shares for its own account, for investment purposes and not with a view towards, or for resale
in connection with, the public sale or distribution thereof, in violation of the Securities Act; provided, however, that by
making the representations herein, the Investor does not agree, or make any representation or warranty, to hold any of the Shares for
any minimum or other specific term and reserves the right to dispose of the Shares at any time in accordance with, or pursuant to, a registration
statement filed pursuant to this Agreement or an applicable exemption under the Securities Act. The Investor does not presently have any
agreement or understanding, directly or indirectly, with any Person to sell or distribute any of the Shares. This
Investor is acquiring the Shares hereunder in the ordinary course of its business. The Investor
acknowledges that it will be disclosed as an “underwriter” and a “selling stockholder” in each Registration Statement
and in any prospectus contained therein to the extent required by applicable law and to the extent the prospectus is related to the resale
of Registrable Securities.
Section 3.05 Accredited
Investor. The Investor is an “Accredited Investor” as that term is defined in Rule 501(a)(3) of Regulation D.
Section 3.06 Information.
The Investor and its advisors (and its counsel), if any, have been furnished with all materials relating to the business, finances and
operations of the Company and information the Investor deemed material to making an informed investment decision. The Investor and its
advisors (and its counsel), if any, have been afforded the opportunity to ask questions of the Company and its management and have received
answers to such questions. Neither such inquiries nor any other due diligence investigations conducted by such Investor or its advisors
(and its counsel), if any, or its representatives shall modify, amend or affect the Investor’s right to rely on the Company’s
representations and warranties contained in this Agreement. The Investor acknowledges and agrees that the Company has not made to the
Investor, and the Investor acknowledges and agrees it has not relied upon, any representations and warranties of the Company, its employees
or any third party other than the representations and warranties of the Company contained in this Agreement. The Investor understands
that its investment involves a high degree of risk. The Investor has sought such accounting, legal and tax advice, as it has considered
necessary to make an informed investment decision with respect to the transactions contemplated hereby.
Section 3.07 Not an Affiliate.
The Investor is not an officer, director or a person that directly, or indirectly through one or more intermediaries, controls or is controlled
by, or is under common control with the Company or any affiliate of the Company (as that term is defined in Rule 405 promulgated under
the Securities Act).
Section 3.08 General
Solicitation. Neither the Investor, nor any of its affiliates, nor any person acting on its or their behalf, has engaged or will
engage in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with any offer or
sale of the Shares by the Investor.
Section
3.09 Trading Activities. The
Investor has not directly or indirectly, nor has any Person acting on behalf of or pursuant to any understanding with the Investor, engaged
in any transactions in the securities of the Company (including, without limitation, any Short Sales (as defined below) involving the
Company’s securities) during the period commencing as of the time that the Investor first contacted the Company or the Company’s agents
regarding the specific investment in the Company contemplated by this Agreement and ending immediately prior to the execution of this
Agreement by the Investor.
Article IV. Representations
and Warranties of the Company
Except as set forth in the
disclosure schedule delivered by the Company to the Investor concurrently with this Agreement (which is hereby incorporated by reference
in, and constitutes an integral part of, this Agreement) (the “Disclosure Schedule”), or where specifically set forth
below with respect to certain specified representations and warranties, the SEC Documents, the Company hereby makes the following representations,
warranties and covenants to the Investor:
Section 4.01 Organization
and Qualification. The Company and each of its Subsidiaries are entities duly formed, validly existing and in good standing under
the laws of the jurisdiction in which they are formed and have the requisite power and authority to own their properties and to carry
on their business as now being conducted. The Company and each of its Subsidiaries is duly qualified to do business and is in good standing
in every jurisdiction in which the nature of the business conducted by it makes such qualification necessary, except to the extent that
the failure to be so qualified or be in good standing would not have a Material Adverse Effect.
Section 4.02 Authorization,
Enforcement, Compliance with Other Instruments. The Company has the requisite corporate power and authority to enter into and perform
its obligations under this Agreement and the other Transaction Documents and to issue the Shares in accordance with the terms hereof and
thereof. The execution and delivery by the Company of this Agreement and the other Transaction Documents, and the consummation by the
Company of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the Shares) have been or (with
respect to consummation) will be duly authorized by the Company’s board of directors and no further consent or authorization will
be required by the Company or its board of directors except for the approval of the Company’s shareholders. This Agreement and the
other Transaction Documents to which the Company is a party have been (or, when executed and delivered, will be) duly executed and delivered
by the Company and, assuming the execution and delivery thereof and acceptance by the Investor, constitute (or, when duly executed and
delivered, will be) the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their
respective terms, except as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization,
moratorium, liquidation or other laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies
and except as rights to indemnification and to contribution may be limited by federal or state securities law.
Section 4.03 Authorization
of the Shares. The Shares to be issued under this Agreement have been, or with respect to Shares to be purchased by the Investor pursuant
to an Advance Notice, will be, when issued and delivered pursuant to the terms approved by the board of directors of the Company or a
duly authorized committee thereof, or a duly authorized executive committee, against payment therefor as provided herein, duly and validly
authorized and issued and fully paid and nonassessable, free and clear of any pledge, lien, encumbrance, security interest or other claim,
including any statutory or contractual preemptive rights, resale rights, rights of first refusal or other similar rights, and will be
registered pursuant to Section 12 of the Exchange Act. The Shares, when issued, will conform to the description thereof set forth in or
incorporated into the Prospectus.
Section 4.04 No Conflict.
The execution, delivery and performance of the Transaction Documents by the Company and the consummation by the Company of the transactions
contemplated hereby and thereby (including, without limitation, the issuance of the Shares) will not (i) result in a violation of the
articles of incorporation or other organizational documents of the Company or its Subsidiaries (with respect to consummation, as the same
may be amended prior to the date on which any of the transactions contemplated hereby are consummated), (ii) conflict with, or constitute
a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Company or its Subsidiaries is a party,
or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including federal and state securities laws and
regulations) applicable to the Company or its Subsidiaries or by which any property or asset of the Company or its Subsidiaries is bound
or affected except, in the case of clause (ii) or (iii) above, to the extent such violations that would not reasonably be expected to
have a Material Adverse Effect.
Section 4.05 SEC Documents;
Financial Statements. For the past two years the Company has timely filed (giving effect to permissible extensions in accordance with
Rule 12b-25 under the Exchange Act) all SEC Documents. The Company has delivered or made available to the Investor through the SEC’s
website at http://www.sec.gov, true and complete copies of the SEC Documents, as applicable. Except as disclosed in amendments or subsequent
filings to the SEC Documents, as of its filing date (or, if amended or superseded by a filing prior to the date hereof, on the date of
such amended or superseded filing), each of the SEC Documents complied in all material respects with the requirements of the Exchange
Act or the Securities Act, as applicable, and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents,
and did not contain any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Section 4.06 Financial
Statements. The consolidated financial statements of the Company included or incorporated by reference in the SEC Documents, together
with the related notes and schedules, present fairly, in all material respects, the consolidated financial position of the Company and
the Subsidiaries as of the dates indicated and the consolidated results of operations, cash flows and changes in stockholders’ equity
of the Company for the periods specified and have been prepared in compliance with the requirements of the Securities Act and Exchange
Act and in conformity with generally accepted accounting principles in the United States (“GAAP”) applied on a consistent
basis (except for (i) such adjustments to accounting standards and practices as are noted therein, (ii) in the case of unaudited interim
financial statements, to the extent such financial statements may not include footnotes required by GAAP or may be condensed or summary
statements and (iii) such adjustments which are not material, either individually or in the aggregate) during the periods involved; the
other financial and statistical data with respect to the Company and the Subsidiaries contained or incorporated by reference in the SEC
Documents are accurately and fairly presented and prepared on a basis consistent with the financial statements and books and records of
the Company; there are no financial statements (historical or pro forma) that are required to be included or incorporated by reference
in the SEC Documents that are not included or incorporated by reference as required; the Company and the Subsidiaries do not have any
material liabilities or obligations, direct or contingent (including any off-balance sheet obligations), not described in the SEC Documents
(excluding the exhibits thereto); and all disclosures contained or incorporated by reference in the SEC Documents regarding “non-GAAP
financial measures” (as such term is defined by the rules and regulations of the SEC) comply in all material respects with Regulation
G of the Exchange Act and Item 10 of Regulation S-K under the Securities Act, to the extent applicable. The interactive data in eXtensible
Business Reporting Language included or incorporated by reference in the SEC Documents fairly presents the information called for in all
material respects and has been prepared in accordance with the SEC’s rules and guidelines applicable thereto.
Section 4.07 Registration
Statement and Prospectus. The Company and the transactions contemplated by this Agreement meet the requirements for and comply with
the conditions for the use of Form S-1 under the Securities Act. Each Registration Statement and the offer and sale of Shares as contemplated
hereby, if and when filed, will meet the requirements of Rule 415 under the Securities Act and comply in all material respects with
said rule. Any statutes, regulations, contracts or other documents that are required to be described in a Registration Statement or a
Prospectus, or to be filed as exhibits to a Registration Statement have been so described or filed. Copies of each Registration Statement,
any Prospectus, and any such amendments or supplements thereto and all documents incorporated by reference therein that were filed with
the SEC on or prior to the date of this Agreement have been delivered, or are available through EDGAR, to the Investor and its counsel.
The Company has not distributed and, prior to the later to occur of each Advance Notice Date and completion of the distribution of the
Shares, will not distribute any offering material in connection with the offering or sale of the Shares other than a Registration Statement
and the Prospectus to which the Investor has consented.
Section 4.08 No Misstatement
or Omission. Each Registration Statement, when it became or becomes effective, and any Prospectus, on the date of such Prospectus
or amendment or supplement, conformed and will conform in all material respects with the requirements of the Securities Act. At each Advance
Notice Date, the Registration Statement, and the Prospectus, as of such date, will conform in all material respects with the requirements
of the Securities Act. Each Registration Statement, when it became or becomes effective, did not, and will not, contain an untrue statement
of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
Each Prospectus did not, or will not, include an untrue statement of a material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were made, not misleading. The documents incorporated by reference
in a Prospectus or any Prospectus Supplement did not, and any further documents filed and incorporated by reference therein will not,
when filed with the SEC, contain an untrue statement of a material fact or omit to state a material fact required to be stated in such
document or necessary to make the statements in such document, in light of the circumstances under which they were made, not misleading.
The foregoing shall not apply to statements in, or omissions from, any such document made in reliance upon, and in conformity with, information
furnished to the Company by the Investor specifically for use in the preparation thereof.
Section 4.09 Conformity
with Securities Act and Exchange Act. Each Registration Statement, each Prospectus, or any amendment or supplement thereto, and the
documents incorporated by reference in each Registration Statement, Prospectus or any amendment or supplement thereto, when such documents
were or are filed with the SEC under the Securities Act or the Exchange Act or became or become effective under the Securities Act, as
the case may be, conformed or will conform in all material respects with the requirements of the Securities Act and the Exchange Act,
as applicable.
Section 4.10 Equity Capitalization.
(a) Authorized
and Outstanding Capital Stock. As of the date hereof, the authorized capital stock of the Company consists of: (i) preferred stock,
$0.001 par value per share, 20,000,000 authorized shares and 0 shares issued and outstanding, and (ii) common stock, $0.0001 par value
per share, 600,000,000 authorized shares and 18,547,201 issued and outstanding.
(b) Valid
Issuance; Available Shares. All of such outstanding shares are duly authorized and have been validly issued and are fully paid
and nonassessable.
(C) Existing
Securities; Obligations. Except as disclosed in the SEC Documents: (A) none of the Company’s or any Subsidiary’s
shares, interests or capital stock is subject to preemptive rights or any other similar rights or liens suffered or permitted by the Company
or any Subsidiary; (B) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character
whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares, interests or capital
stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any
of its Subsidiaries is or may become bound to issue additional shares, interests or capital stock of the Company or any of its Subsidiaries
or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights
convertible into, or exercisable or exchangeable for, any shares, interests or capital stock of the Company or any of its Subsidiaries;
(C) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any
of their securities under the Securities Act (except pursuant to this Agreement); (D) there are no outstanding securities or instruments
of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments,
understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company
or any of its Subsidiaries; (E) there are no securities or instruments containing anti-dilution or similar provisions that will be
triggered by the issuance of the Shares; and (G) neither the Company nor any Subsidiary has entered into any Variable Rate Transaction.
Section 4.11 Intellectual
Property Rights. The Company and its Subsidiaries own or possess adequate rights or licenses to use all material trademarks, trade
names, service marks, service mark registrations, service names, patents, patent rights, copyrights, inventions, licenses, approvals,
governmental authorizations, trade secrets and rights, if any, necessary to conduct their respective businesses as now conducted, except
as would not cause a Material Adverse Effect. The Company and its Subsidiaries have not received written notice of any infringement by
the Company or its Subsidiaries of trademark, trade name rights, patents, patent rights, copyrights, inventions, licenses, service names,
service marks, service mark registrations, or trade secrets, except as would not cause a Material Adverse Effect. To the knowledge of
the Company, there is no claim, action or proceeding being made or brought against, or to the Company’s knowledge, being threatened
against the Company or its Subsidiaries regarding trademark, trade name, patents, patent rights, invention, copyright, license, service
names, service marks, service mark registrations, trade secret or other infringement; and, except as would not cause a Material Adverse
Effect, the Company is not aware of any facts or circumstances which might give rise to any of the foregoing.
Section 4.12 Employee
Relations. Neither the Company nor any of its Subsidiaries is involved in any labor dispute nor, to the knowledge of the Company or
any of its Subsidiaries, is any such dispute threatened, in each case which is reasonably likely to cause a Material Adverse Effect.
Section 4.13 Environmental
Laws. The Company and its Subsidiaries (i) have not received written notice alleging any failure to comply in all material respects
with all Environmental Laws (as defined below), (ii) have received all permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) have not received written notice alleging any failure to comply with
all terms and conditions of any such permit, license or approval where, in each of the foregoing clauses (i), (ii) and (iii), the failure
to so comply would be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect. The term “Environmental
Laws” means all applicable federal, state and local laws relating to pollution or protection of human health or the environment
(including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata), including, without limitation,
laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, or toxic or hazardous
substances or wastes (collectively, “Hazardous Materials”) into the environment, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials, as well as all authorizations,
codes, decrees, demands or demand letters, injunctions, judgments, licenses, notices or notice letters, orders, permits, plans or regulations
issued, entered, promulgated or approved thereunder.
Section 4.14 Title.
Except as would not cause a Material Adverse Effect, the Company (or its Subsidiaries) has indefeasible fee simple or leasehold title
to its properties and material assets owned by it, free and clear of any pledge, lien, security interest, encumbrance, claim or equitable
interest other than such as are not material to the business of the Company. Any real property and facilities held under lease by the
Company and its Subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material
and do not interfere with the use made and proposed to be made of such property and buildings by the Company and its Subsidiaries.
Section 4.15 Insurance.
The Company and each of its Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks
and in such amounts as management of the Company believes to be prudent and customary in the businesses in which the Company and its Subsidiaries
are engaged. The Company has no reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have
a Material Adverse Effect.
Section 4.16 Regulatory
Permits. Except as would not cause a Material Adverse Effect, the Company and its Subsidiaries possess all material certificates,
authorizations and permits issued by the appropriate federal, state or foreign regulatory authorities necessary to own their respective
businesses, and neither the Company nor any such Subsidiary has received any written notice of proceedings relating to the revocation
or modification of any such certificate, authorization or permits.
Section 4.17 Internal
Accounting Controls. The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles 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, and management is not aware of any material weaknesses that are not disclosed in the SEC Documents
as and when required.
Section 4.18 Absence of
Litigation. There is no action, suit, proceeding, inquiry or investigation before or by any court, public board, government agency,
self-regulatory organization or body pending against or affecting the Company, the Common Shares or any of the Company’s Subsidiaries,
wherein an unfavorable decision, ruling or finding would have a Material Adverse Effect.
Section 4.19 Absence of
Certain Changes. Since the date of the Company’s most recent audited financial statements contained in a Form 10-K, there has
been no Material Adverse Effect, nor any event or occurrence specifically affecting the Company or its Subsidiaries that would be reasonably
expected to result in a Material Adverse Effect. Since the date of the Company’s most recent audited financial statements contained
in a Form 10-K, neither the Company nor any of its Subsidiaries has (i) declared or paid any dividends, (ii) sold any material assets,
individually or in the aggregate, outside of the ordinary course of business, or (iii) made any material capital expenditures, individually
or in the aggregate, outside of the ordinary course of business. Neither the Company nor any of its Subsidiaries has taken any steps to
seek protection pursuant to any law or statute relating to bankruptcy, insolvency, reorganization, receivership, liquidation or winding
up, nor does the Company or any Subsidiary have any knowledge or reason to believe that any of their respective creditors intend to initiate
involuntary bankruptcy proceedings.
Section 4.20 Subsidiaries.
Other than as set forth in the Disclosure Schedule, the Company does not own or control, directly or indirectly, any interest in any other
corporation, partnership, association or other business entity.
Section 4.21 Tax Status.
Each of the Company and its Subsidiaries (i) has timely made or filed all foreign, federal and state income and all other tax returns,
reports and declarations required by any jurisdiction to which it is subject, (ii) has timely paid all taxes and other governmental assessments
and charges that are material in amount, shown or determined to be due on such returns, reports and declarations, except those being contested
in good faith and (iii) has set aside on its books provision reasonably adequate for the payment of all taxes for periods subsequent to
the periods to which such returns, reports or declarations apply. The Company has not received written notification of any unpaid taxes
in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company and its Subsidiaries
know of no basis for any such claim where failure to pay would cause a Material Adverse Effect.
Section 4.22 Certain Transactions.
Except as not required to be disclosed pursuant to Applicable Laws, none of the officers or directors of the Company is presently a party
to any transaction with the Company (other than for services as employees, officers and directors), including any contract, agreement
or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from,
or otherwise requiring payments to or from any officer or director, or to the knowledge of the Company, any corporation, partnership,
trust or other entity in which any officer or director has a substantial interest or is an officer, director, trustee or partner.
Section 4.23 Rights of
First Refusal. The Company is not obligated to offer the Common Shares offered hereunder on a right of first refusal basis to any
third parties including, but not limited to, current or former shareholders of the Company, underwriters, brokers, agents or other third
parties.
Section 4.24 Dilution.
The Company is aware and acknowledges that issuance of Common Shares hereunder could cause dilution to existing shareholders and could
significantly increase the outstanding number of Common Shares.
Section 4.25 Acknowledgment
Regarding Investor’s Purchase of Shares. The Company acknowledges and agrees that the Investor is acting solely in the capacity
of an arm’s length investor with respect to this Agreement and the transactions contemplated hereunder. The Company further acknowledges
that the Investor is not acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to this Agreement
and the transactions contemplated hereunder and any advice given by the Investor or any of its representatives or agents in connection
with this Agreement and the transactions contemplated hereunder is merely incidental to the Investor’s purchase of the Shares hereunder.
The Company is aware and acknowledges that it shall not be able to request Advances under this Agreement if the Registration Statement
is not effective or if any issuances of Common Shares pursuant to any Advances would violate any rules of the Principal Market. The Company
acknowledges and agrees that it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions
of the transactions contemplated by this Agreement.
Section 4.26 Finder’s
Fees. Neither the Company nor any of the Subsidiaries has incurred any liability for any finder’s fees, brokerage commissions
or similar payments in connection with the transactions herein contemplated.
Section 4.27 Relationship
of the Parties. Neither the Company, nor any of its subsidiaries, affiliates, nor any person acting on its or their behalf is a client
or customer of the Investor or any of its affiliates and neither the Investor nor any of its affiliates has provided, or will provide,
any services to the Company or any of its affiliates, its subsidiaries, or any person acting on its or their behalf. The Investor’s
relationship to Company is solely as investor as provided for in the Transaction Documents.
Section 4.28 Operations.
The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with the Applicable Laws and
neither the Company nor the Subsidiaries, nor any director, officer, or employee of the Company
or any Subsidiary nor, to the Company’s knowledge, any agent, affiliate or other person acting on behalf of the Company or any Subsidiary
has, not complied with Applicable Law; and no action, suit or proceeding by or before any governmental authority involving the Company
or any of its Subsidiaries with respect to Applicable Laws is pending or, to the knowledge of the Company, threatened.
Section 4.29 Forward-Looking
Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange
Act) contained in the Registration Statement or a Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed
other than in good faith.
Section 4.30 Compliance
with Laws. The Company and each of its Subsidiaries are in compliance in all material respects with Applicable Laws; the Company has
not received a notice of non-compliance, nor knows of, nor has reasonable grounds to know of, any facts that any director, officer, or
employee of the Company or any Subsidiary nor, to the Company’s knowledge, any agent, affiliate or other person acting on behalf
of the Company or any Subsidiary has, has not complied with Applicable Laws, or could give rise to a notice of non-compliance with Applicable
Laws, and is not aware of any pending change or contemplated change to any applicable law or regulation or governmental position; in each
case that would have a Material Adverse Effect.
Section 4.31 Sanctions
Matters. Neither the Company nor any of its Subsidiaries or, to the knowledge of the Company, any director, officer or controlled
affiliate of the Company or any director or officer of any Subsidiary, is a Person that is, or is owned or controlled by a Person that
is (i) the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Asset Control
(“OFAC”), the United Nations Security Council, the European Union, His Majesty’s Treasury, or other relevant
sanctions authorities, including, without limitation, designation on OFAC’s Specially Designated Nationals and Blocked Persons List
or OFAC’s Foreign Sanctions Evaders List or other relevant sanctions authority (collectively, “Sanctions”), or
(ii) located, organized or resident in a country or territory that is the subject of Sanctions that broadly prohibit dealings with
that country or territory (including, without limitation, the Crimea, Zaporizhzhia and Kherson regions, the Donetsk People’s Republic
and Luhansk People’s Republic in Ukraine, Cuba, Iran, North Korea, Russia, Sudan and Syria (the “Sanctioned Countries”)).
Neither the Company nor any of its Subsidiaries will, directly or indirectly, use the proceeds from the sale of Advance Shares, or lend,
contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person (a) for the purpose
of funding or facilitating any activities or business of or with any Person or in any country or territory that, at the time of such funding
or facilitation, is the subject of Sanctions or is a Sanctioned Country, or (b) in any other manner that will result in a violation
of Sanctions or Applicable Laws by any Person (including any Person participating in the transactions contemplated by this Agreement,
whether as underwriter, advisor, investor or otherwise). For the past five years, neither the Company nor any of its Subsidiaries has
engaged in, and is now not engaged in, any dealings or transactions with any Person, or in any country or territory, that at the time
of the dealing or transaction is or was the subject of Sanctions or was a Sanctioned Country. Neither the Company nor any of its Subsidiaries
nor any director, officer or controlled affiliate of the Company or any of its Subsidiaries, has ever had funds blocked by a United States
bank or financial institution, temporarily or otherwise, as a result of OFAC concerns.
Article V. Indemnification
The Investor and the Company
represent to the other the following with respect to itself:
Section 5.01 Indemnification
by the Company. In consideration of the Investor’s execution and delivery of this Agreement and acquiring the Shares hereunder,
and in addition to all of the Company’s other obligations under this Agreement, the Company shall defend, protect, indemnify and
hold harmless the Investor and its investment manager, Yorkville Advisors Global, LP, and each of their respective officers, directors,
managers, members, partners, employees and agents (including, without limitation, those retained in connection with the transactions contemplated
by this Agreement) and each person who controls the Investor within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act (collectively, the “Investor Indemnitees”) from and against any and all actions, causes of action, suits,
claims, losses, costs, penalties, fees, liabilities and damages, and reasonable and documented expenses in connection therewith (irrespective
of whether any such Investor Indemnitee is a party to the action for which indemnification hereunder is sought), and including reasonable
attorneys’ fees and disbursements (the “Indemnified Liabilities”), incurred by the Investor Indemnitees or any
of them as a result of, or arising out of, or relating to (a) any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement for the registration of the Shares as originally filed or in any amendment thereof, or in any related prospectus,
or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however,
that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of the Investor specifically for inclusion therein; (b) any
material misrepresentation or breach of any material representation or material warranty made by the Company in this Agreement or any
other certificate, instrument or document contemplated hereby or thereby; or (c) any material breach of any material covenant, material
agreement or material obligation of the Company contained in this Agreement or any other certificate, instrument or document contemplated
hereby or thereby. To the extent that the foregoing undertaking by the Company may be unenforceable under Applicable Law, the Company
shall make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities, which is permissible under
Applicable Law.
Section 5.02 Indemnification
by the Investor. In consideration of the Company’s execution and delivery of this Agreement, and in addition to all of the Investor’s
other obligations under this Agreement, the Investor shall defend, protect, indemnify and hold harmless the Company, its Subsidiaries
and all of its and their officers, directors, shareholders, employees and agents (including, without limitation, those retained in connection
with the transactions contemplated by this Agreement) and each person who controls the Company within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act (collectively, the “Company Indemnitees”) from and against any
and all Indemnified Liabilities incurred by the Company Indemnitees or any of them as a result of, or arising out of, or relating to (a)
any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement for the registration of the
Shares as originally filed or in any amendment thereof, or in any related prospectus, or in any amendment thereof or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided, however, that the Investor will only be liable for written information
relating to the Investor furnished to the Company by or on behalf of the Investor specifically for inclusion in the documents referred
to in the foregoing indemnity, and will not be liable in any such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance
upon and in conformity with written information furnished to the Investor by or on behalf of the Company specifically for inclusion therein;
(b) any misrepresentation or breach of any representation or warranty made by the Investor in this Agreement or any instrument or document
contemplated hereby or thereby executed by the Investor; or (c) any breach of any covenant, agreement or obligation of the Investor contained
in this Agreement or any other certificate, instrument or document contemplated hereby or thereby executed by the Investor. To the extent
that the foregoing undertaking by the Investor may be unenforceable under Applicable Laws, the Investor shall make the maximum contribution
to the payment and satisfaction of each of the Indemnified Liabilities, which is permissible under Applicable Laws.
Section 5.03 Notice of
Claim. Promptly after receipt by an Investor Indemnitee or Company Indemnitee of notice of the commencement of any action or proceeding
(including any governmental action or proceeding) involving an Indemnified Liability, such Investor Indemnitee or Company Indemnitee,
as applicable, shall, if a claim for an Indemnified Liability in respect thereof is to be made against any indemnifying party under this
Article V, deliver to the indemnifying party a written notice of the commencement thereof; but the failure to so notify the indemnifying
party will not relieve it of liability under this Article V except to the extent the indemnifying party is prejudiced by such failure.
The indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any
other indemnifying party similarly noticed, to assume control of the defense thereof with counsel mutually reasonably satisfactory to
the indemnifying party and the Investor Indemnitee or Company Indemnitee, as the case may be; provided, however, that an Investor Indemnitee
or Company Indemnitee shall have the right to retain its own counsel with the actual and reasonable third party fees and expenses of not
more than one counsel for such Investor Indemnitee or Company Indemnitee to be paid by the indemnifying party, if, in the reasonable opinion
of counsel retained by the indemnifying party, the representation by such counsel of the Investor Indemnitee or Company Indemnitee and
the indemnifying party would be inappropriate due to actual or potential differing interests between such Investor Indemnitee or Company
Indemnitee and any other party represented by such counsel in such proceeding. The Investor Indemnitee or Company Indemnitee shall cooperate
fully with the indemnifying party in connection with any negotiation or defense of any such action or claim by the indemnifying party
and shall furnish to the indemnifying party all information reasonably available to the Investor Indemnitee or Company Indemnitee which
relates to such action or claim. The indemnifying party shall keep the Investor Indemnitee or Company Indemnitee reasonably apprised as
to the status of the defense or any settlement negotiations with respect thereto. No indemnifying party shall be liable for any settlement
of any action, claim or proceeding effected without its prior written consent, provided, however, that the indemnifying party shall not
unreasonably withhold, delay or condition its consent. No indemnifying party shall, without the prior written consent of the Investor
Indemnitee or Company Indemnitee, consent to entry of any judgment or enter into any settlement or other compromise which does not include
as an unconditional term thereof the giving by the claimant or plaintiff to such Investor Indemnitee or Company Indemnitee of a release
from all liability in respect to such claim or litigation. Following indemnification as provided for hereunder, the indemnifying party
shall be subrogated to all rights of the Investor Indemnitee or Company Indemnitee with respect to all third parties, firms or corporations
relating to the matter for which indemnification has been made. The indemnification required by this Article V shall be made by periodic
payments of the amount thereof during the course of the investigation or defense, as and when bills are received and payment therefor
is due.
Section
5.04 Remedies. The remedies provided for in this Article V are not exclusive and shall not limit any right or remedy
which may be available to any indemnified person at law or equity. The obligations of
the parties to indemnify or make contribution under this Article V shall survive expiration
or termination of this Agreement.
Section 5.05 Limitation
of liability. Notwithstanding the foregoing, no party shall seek, nor shall any be entitled to recover from the other party be liable
for, special, incidental, indirect, consequential, punitive or exemplary damages.
Article VI.
Covenants
The Company covenants with the
Investor, and the Investor covenants with the Company, as follows, which covenants of one party are for the benefit of the other party,
during the Commitment Period:
Section 6.01 Effective
Registration Statement. During the Commitment Period, the Company shall maintain the continuous effectiveness of each Registration
Statement filed with the SEC under the Securities Act pursuant to and in accordance with the Registration Rights Agreement; provided,
however, the Company shall only be required to use its commercially reasonable efforts to maintain the continuous effectiveness of the
Registration Statement and each subsequent Registration Statement filed with the SEC under the Securities Act pursuant to and in accordance
with the Registration Rights Agreement.
Section 6.02 Registration
and Listing. The Company shall cause the Common Shares to continue to be registered as a class of securities under Section 12(b) of
the Exchange Act, and to comply with its reporting and filing obligations under the Exchange Act, and shall not take any action or file
any document (whether or not permitted by the Securities Act or the Exchange Act) to terminate or suspend such registration or to terminate
or suspend its reporting and filing obligations under the Exchange Act or Securities Act, except as permitted herein. The Company shall
continue the listing and trading of its Common Shares and the listing of the Shares purchased by the Investor hereunder on the Principal
Market and to comply with the Company’s reporting, filing and other obligations under the rules and regulations of the Principal
Market. If the Company receives any final and non-appealable notice that the listing or quotation of the Common Shares on the Principal
Market shall be terminated on a date certain, the Company shall promptly (and in any case within 24 hours) notify the Investor of such
fact in writing and shall use its commercially reasonable efforts to cause the Common Shares to be listed or quoted on another Principal
Market.
Section 6.03 Blue Sky.
The Company shall take such action, if any, as is necessary by the Company in order to obtain an exemption for or to qualify the Shares
for sale by the Company to the Investor pursuant to the Transaction Documents, and at the request of the Investor, the subsequent resale
of Registrable Securities by the Investor, in each case, under applicable state securities or “Blue Sky” laws and shall provide
evidence of any such action so taken to the Investor from time to time during the Commitment Period; provided, however,
that the Company shall not be required in connection therewith or as a condition thereto to (x) qualify to do business in any jurisdiction
where it would not otherwise be required to qualify, (y) subject itself to general taxation in any such jurisdiction, or (z) file a general
consent to service of process in any such jurisdiction.
Section 6.04 Suspension
of Registration Statement.
| (a) | Establishment of a Black Out Period. During the Commitment Period, the Company from time to time
may suspend the use of a Registration Statement by written notice to the Investor in the event that the Company determines in its sole
discretion in good faith that such suspension is necessary to (A) delay the disclosure of material nonpublic information concerning the
Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or
(B) amend or supplement the Registration Statement or Prospectus so that such Registration Statement or Prospectus shall 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, in light of the circumstances under which they were made, not misleading (a “Black Out Period”). |
| (b) | No Sales by Investor During the Black Out Period. During such Black Out Period, the Investor agrees
not to sell any Common Shares of the Company pursuant to such Registration Statement, but may sell shares pursuant to an exemption from
registration, if available, subject to the Investor’s compliance with Applicable Laws. |
| (c) | Limitations on the Black Out Period. The Company shall not impose any Black Out Period that is
longer than 15 days or in a manner that is more restrictive (including, without limitation, as to duration) than the comparable restrictions
that the Company may impose on transfers of the Company’s equity securities by its directors and senior executive officers. In addition,
the Company shall not deliver any Advance Notice during any Black Out Period. If the public announcement of such material, nonpublic information
is made during a Black Out Period, the Black Out Period shall terminate immediately after such announcement, and the Company shall immediately
notify the Investor of the termination of the Black Out Period. |
Section 6.05 Listing of
Common Shares. As of each Advance Notice Date, the Shares to be sold by the Company from time to time hereunder will have been registered
under Section 12(b) of the Exchange Act and approved for listing on the Principal Market, subject to official notice of issuance.
Section 6.06 Opinion of
Counsel. Prior to the date of the delivery by the Company of the first Advance Notice, the Investor shall have received an opinion
letter from counsel to the Company in form and substance reasonably satisfactory to the Investor.
Section 6.07 Exchange
Act Registration. The Company will file in a timely manner all reports and other documents required of it as a reporting company under
the Exchange Act and, during the Commitment Period, will not take any action or file any document (whether or not permitted by Exchange
Act or the rules thereunder) to terminate or suspend its reporting and filing obligations under the Exchange Act.
Section 6.08 Transfer
Agent Instructions. For any time while there is a Registration Statement in effect for this transaction, the Company shall (if required
by the transfer agent for the Common Shares) deliver to the transfer agent for the Common Shares (with a copy to the Investor) instructions
to issue Common Shares to the Investor free of restrictive legends upon each Advance if the delivery of such instructions are consistent
with Applicable Law, in each case supported as needed by an opinion from legal counsel for the Company.
Section 6.09 Corporate
Existence. The Company will use commercially reasonable efforts to preserve and continue the corporate existence of the Company during
the Commitment Period.
Section 6.10 Notice of
Certain Events Affecting Registration; Suspension of Right to Make an Advance. The Company will promptly notify the Investor, and
confirm in writing, upon its becoming aware of the occurrence of any of the following events in respect of a Registration Statement or
related Prospectus: (i) receipt of any request for amendments or supplements to the Registration Statement or related Prospectus; (ii)
the issuance by the SEC or any other Federal governmental authority of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose; (iii) receipt of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Common Shares for sale in any jurisdiction or the initiation or written threat
of any proceeding for such purpose; (iv) the happening of any event that makes any statement made in the Registration Statement or related
Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires
the making of any changes in the Registration Statement, related Prospectus or documents so that, in the case of the Registration Statement,
it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, and that in the case of the related Prospectus, it will not contain any untrue statement
of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or of the necessity to amend the Registration Statement or supplement
a related Prospectus to comply with the Securities Act or any other law (and the Company will promptly make available to the Investor
any such supplement or amendment to the related Prospectus). The Company shall not deliver to the Investor any Advance Notice, and the
Company shall not sell any Shares pursuant to any pending Advance Notice (other than as required pursuant to Section 2.05(d)), during
the continuation of any of the foregoing events (each of the events described in the immediately preceding clauses (i) through (iv), inclusive,
a “Material Outside Event”).
Section 6.11 Consolidation.
If an Advance Notice has been delivered to the Investor, then the Company shall not effect any consolidation of the Company with or into,
or a transfer of all or substantially all the assets of the Company to another entity before the transaction contemplated in such Advance
Notice has been closed in accordance with Section 2.02 hereof, and all Shares in connection with such Advance have been received by the
Investor.
Section 6.12 Issuance
of the Company’s Common Shares. The issuance and sale of the Common Shares to the Investor hereunder shall be made in accordance
with the provisions and requirements of Section 4(a)(2) of the Securities Act and any applicable state securities law.
Section 6.13 Expenses.
The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated, will pay all expenses
incident to the performance of its obligations hereunder, including but not limited to (i) the preparation, printing and filing of the
Registration Statement and each amendment and supplement thereto, of each Prospectus and of each amendment and supplement thereto; (ii)
the preparation, issuance and delivery of any Shares issued pursuant to this Agreement, (iii) all fees and disbursements of the Company’s
counsel, accountants and other advisors (but not, for the avoidance doubt, the fees and disbursements of Investor’s counsel, accountants
and other advisors), (iv) the qualification of the Shares under securities laws in accordance with the provisions of this Agreement, including
filing fees in connection therewith, (v) the printing and delivery of copies of any Prospectus and any amendments or supplements thereto
requested by the Investor, (vi) the fees and expenses incurred in connection with the listing or qualification of the Shares for trading
on the Principal Market, or (vii) filing fees of the SEC and the Principal Market.
Section 6.14 Current Report.
The Company shall timely file with the SEC a current report on Form 8-K describing all the material terms of the transactions
contemplated by the Transaction Documents in the form required by the Exchange Act and attaching all the material Transaction Documents
(including any exhibits thereto, the “Current Report”). The Company shall provide the Investor and its legal counsel
a reasonable opportunity to comment on a draft of the Current Report prior to filing the Current Report with the SEC and shall give due
consideration to all such comments. Notwithstanding anything contained in this Agreement to the contrary, the Company expressly agrees
that from and after the filing of the Current Report with the SEC, the Company shall have publicly disclosed all material, nonpublic information
provided to the Investor (or the Investor’s representatives or agents) by the Company or any of its Subsidiaries, or any of their
respective officers, directors, employees, agents or representatives in connection with the transactions contemplated by the Transaction
Documents. In addition, effective upon the filing of the Current Report, the Company acknowledges and agrees that any and all confidentiality
or similar obligations under any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their respective
officers, directors, affiliates, employees or agents, on the one hand, and the Investor or any of its respective officers, directors,
affiliates, employees or agents, on the other hand shall terminate. The Company shall not, and the Company shall cause each of its Subsidiaries
and each of its and their respective officers, directors, employees and agents not to, provide the Investor with any material, non-public
information regarding the Company or any of its Subsidiaries without the express prior written consent of the Investor (which may be granted
or withheld in the Investor’s sole discretion). The Company understands and confirms that the Investor will rely on the foregoing
representations in effecting resales of Shares.
Section 6.15 Use of Proceeds.
Neither the Company nor any Subsidiary will, directly or indirectly, use the proceeds of the transactions contemplated herein to repay
any advances or loans to any executives, directors, or employees of the Company or any Subsidiary or to make any payments in respect of
any related party obligations, including without limitation any payables or notes payable to related parties of the Company or any Subsidiary
whether or not such amounts are described on the balance sheets of the Company in any SEC Documents and any Subsidiary or described in
any “Related Party Transactions” section of any SEC Documents. Neither the Company nor any of its Subsidiaries will, directly
or indirectly, use the proceeds from the transactions contemplated herein, or lend, contribute or otherwise make available such proceeds
to any subsidiary, joint venture partner or other Person (a) for the purpose of funding or facilitating any activities or business
of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions or
is a Sanctioned Country, or (b) in any other manner that will result in a violation of Sanctions or Applicable Laws by any Person
(including any Person participating in the transactions contemplated by this Agreement, whether as underwriter, advisor, investor or otherwise).
Section 6.16 Advance Notice
Limitation. The Company shall not deliver an Advance Notice if a shareholder meeting or corporate action date, or the record date
for any shareholder meeting or any corporate action, would fall during the period beginning two Trading Days prior to the date of delivery
of such Advance Notice and ending two Trading Days following the Closing of such Advance.
Section 6.17 Compliance
with Laws. The Company shall comply in all material respects with all Applicable Laws.
Section 6.18 Market Activities.
Neither the Company, nor any Subsidiary, nor any of their respective officers, directors or controlling persons will, directly or indirectly,
(i) take any action designed to cause or result in, or that constitutes or might reasonably be expected to constitute or result,
in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of Common Shares or
(ii) sell, bid for, or purchase Common Shares in violation of Regulation M, or pay anyone any compensation for soliciting purchases
of the Shares.
Section 6.19 Trading Information.
On the first Trading Day of each week (provided the Investor sold any shares during the prior week) and otherwise upon the Company’s
reasonable request, the Investor agrees to provide the Company with trading reports setting forth the number and average sales prices
of shares of Common Shares sold by the Investor during the prior trading week.
Section 6.20 Selling Restrictions.
Except as expressly set forth below, the Investor covenants that from and after the date hereof through and including the Trading Day
next following the expiration or termination of this Agreement as provided in Section 9.01 (the “Restricted Period”),
none of the Investor any of its officers, or any entity managed or controlled by the Investor (collectively, the “Restricted
Persons” and each of the foregoing is referred to herein as a “Restricted Person”) shall, directly or indirectly,
engage in any “short sale” (as such term is defined in Rule 200 of Regulation SHO of the Exchange Act) of the Common Shares,
either for its own principal account or for the principal account of any other Restricted Person. Notwithstanding the foregoing, it is
expressly understood and agreed that nothing contained herein shall (without implication that the contrary would otherwise be true) prohibit
any Restricted Person during the Restricted Period from: (1) selling “long” (as defined under Rule 200 promulgated under
Regulation SHO) any Common Shares; or (2) selling a number of Common Shares equal to the number of Advance Shares that such Restricted
Person is unconditionally obligated to purchase under a pending Advance Notice but has not yet received from the Company or the transfer
agent pursuant to this Agreement..
Section 6.21 Assignment.
This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns.
No Party shall have any power or any right to assign or transfer, in whole or in part, this Agreement, or any of its rights or any of
its obligations hereunder, including, without limitation, any right to pursue any claim for damages pursuant to this Agreement or the
transactions contemplated herein, or to pursue any claim for any breach or default of this Agreement, or any right arising from the purported
assignor’s due performance of its obligations hereunder, without the prior written consent of the other Party and any such purported
assignment in contravention of the provisions herein shall be null and void and of no force or effect. Without the consent of the Investor,
the Company shall not have the right to assign or transfer any of its rights or provide any third party the right to bind or obligate
the Company, to deliver Advance Notices or effect Advances hereunder.
Section 6.22 No Frustration.
The Company shall not enter into, announce or recommend to its stockholders any agreement, plan, arrangement or transaction that would
violate the terms of the Transaction Documents or prevent the Company from performing its obligations under the Transaction Documents
to which it is a party, including, without limitation, the obligation of the Company to deliver the Shares to the Investor in respect
of an Advance Notice.
Article VII.
Non-Exclusive Agreement
Subject to Section 6.22 hereof,
this Agreement and the rights awarded to the Investor hereunder are non-exclusive, and the Company may, at any time throughout the term
of this Agreement and thereafter, issue and allot, or undertake to issue and allot, any shares and/or securities and/or convertible notes,
bonds, debentures, options to acquire shares or other securities and/or other facilities which may be converted into or replaced by Common
Shares or other securities of the Company, and to extend, renew and/or recycle any bonds and/or debentures, and/or grant any rights with
respect to its existing and/or future share capital.
Article VIII. Choice
of Law/Jurisdiction
Section 8.01 This Agreement,
and any and all claims, proceedings or causes of action relating to this Agreement or arising from this Agreement or the transactions
contemplated herein, including, without limitation, tort claims, statutory claims and contract claims, shall be interpreted, construed,
governed and enforced under and solely in accordance with the substantive and procedural laws of the State of New York, in each case as
in effect from time to time and as the same may be amended from time to time, and as applied to agreements performed wholly within the
State of New York. The Parties further agree that any action between them shall be heard in New York County, New York, and expressly consent
to the jurisdiction and venue of the Supreme Court of New York, sitting in New York County, New York and the United States District Court
of the Southern District of New York, sitting in New York, New York, for the adjudication of any civil action asserted pursuant to this
Agreement.
EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREIN, THE PERFORMANCE THEREOF OR THE FINANCINGS CONTEMPLATED
HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY
OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE
THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTY HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS PARAGRAPH.
Article IX. Termination
Section 9.01 Termination.
| (a) | Unless earlier terminated as provided hereunder, this Agreement shall terminate automatically on the earliest
of (i) the 36-month anniversary of the Effective Date, or (ii) the date on which the Investor shall have made payment of Advances
pursuant to this Agreement for Common Shares equal to the Commitment Amount. |
| (b) | The Company may terminate this Agreement effective upon five Trading Days’ prior written notice
to the Investor; provided that (i) there are no outstanding Advance Notices under which Common Shares have yet to be issued, and (ii)
the Company has paid all amounts owed to the Investor pursuant to this Agreement. This Agreement may be terminated at any time by the
mutual written consent of the parties, effective as of the date of such mutual written consent unless otherwise provided in such written
consent. |
| (c) | Nothing in this Section 9.01 shall be deemed to release the Company or the Investor from any liability
for any breach under this Agreement, or to impair the rights of the Company and the Investor to compel specific performance by the other
party of its obligations under this Agreement. The indemnification provisions contained in Article V shall survive termination hereunder. |
Article X. Notices
Other than with respect to
Advance Notices, which must be in writing and will be deemed delivered on the day set forth in Section 2.01(b), any notices, consents,
waivers, or other communications required or permitted to be given under the terms of this Agreement must be in writing and will be deemed
to have been delivered (i) upon receipt, when delivered personally; (ii) upon receipt, when sent by e-mail if sent on a Trading Day, or,
if not sent on a Trading Day, on the immediately following Trading Day; (iii) 5 days after being sent by U.S. certified mail, return receipt
requested, (iv) 1 day after deposit with a nationally recognized overnight delivery service, in each case properly addressed to the party
to receive the same. The addresses for such communications (except for Advance Notices which shall be delivered in accordance with Exhibit
B hereof) shall be:
If to the Company, to: |
Spectaire Holdings Inc. 155 Arlington Rd. Watertown, MA 02472 Attn: Brian Semkiw E-mail: bsemkiw@spectaire.com |
|
|
With copies (which shall not constitute
notice or delivery of process) to: |
Holland & Hart LLP
555 17th Street
Denver, CO 80202
Attn: Amy Bowler E-mail: abowler@hollandhart.com |
|
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If to the Investor(s): |
YA II PN, Ltd. |
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1012 Springfield Avenue |
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Mountainside, NJ 07092 |
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Attention: Mark Angelo |
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Portfolio Manager |
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Telephone: (201) 985-8300 |
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Email: mangelo@yorkvilleadvisors.com |
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With a Copy (which shall not constitute notice or delivery of process) to: |
David Fine, Esq.
1012 Springfield Avenue
Mountainside, NJ 07092 |
|
Telephone: (201) 985-8300 |
|
Email: legal@yorkvilleadvisors.com |
|
|
or at such other address and/or e-mail and/or
to the attention of such other person as the recipient party has specified by written notice given to each other party three Business
Days prior to the effectiveness of such change. Written confirmation of receipt (i) given by the recipient of such notice, consent, waiver
or other communication, (ii) electronically generated by the sender’s email service provider containing the time, date, recipient
email address or (iii) provided by a nationally recognized overnight delivery service shall be rebuttable evidence of delivery in accordance
with clause (i), (ii) or (iii) above, respectively.
Article XI. Miscellaneous
Section 11.01 Counterparts.
This Agreement may be executed in identical counterparts, both which shall be considered one and the same agreement and shall become effective
when counterparts have been signed by each party and delivered to the other party. Facsimile or other electronically scanned and delivered
signatures (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the
Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com), including by e-mail attachment, shall be
deemed to have been duly and validly delivered and be valid as originals and effective for all purposes of this Agreement.
Section 11.02 Entire Agreement;
Amendments. This Agreement supersedes all other prior oral or written agreements between the Investor, the Company, their respective
affiliates and persons acting on their behalf with respect to the matters discussed herein, and this Agreement contains the entire understanding
of the parties with respect to the matters covered herein and, except as specifically set forth herein, neither the Company nor the Investor
makes any representation, warranty, covenant or undertaking with respect to such matters. No provision of this Agreement may be waived
or amended other than by an instrument in writing signed by the parties to this Agreement.
Section 11.03 Reporting
Entity for Common Shares. The reporting entity relied upon for the determination of the trading price or trading volume of the Common
Shares on any given Trading Day for the purposes of this Agreement shall be Bloomberg, L.P. or any successor thereto. The written mutual
consent of the Investor and the Company shall be required to employ any other reporting entity.
Section 11.04 Commitment
and Structuring Fee. Each of the parties shall pay its own fees and expenses (including the fees of any attorneys, accountants,
appraisers or others engaged by such party) in connection with this Agreement and the transactions contemplated hereby, except that the
Company shall pay to the Investor, a structuring fee in the amount of $25,000, which has been paid prior to the date hereof. The Company
shall pay a commitment fee in an amount equal to 1% of the Commitment Amount (the “Commitment Fee”), of which (a) one-half
of the Commitment Fee shall be paid within three Trading Days of the date hereof by the issuance to the Investor of such number of Common
Shares that is equal to one-half of the Commitment Fee divided by the closing price of the Common Shares as of the Trading Day immediately
prior to the date hereof (the “Commitment Shares”), and (b) the remaining one-half of the Commitment Fee (the “Deferred
Fee”) shall be paid on the three-month anniversary of the date hereof and shall be paid in cash. The Commitment Shares issuable
hereunder shall be included on the initial Registration Statement. Subject to the satisfaction or waiver by the Investor of the conditions
set forth in Annex III, the Company shall be permitted to submit an Advance Notice solely for the purposes of generating proceeds
to pay the Deferred Fee notwithstanding the limitations set forth in Section 3.01(a)(iii) herein.
Section 11.05 Brokerage.
Each of the parties hereto represents that it has had no dealings in connection with this transaction with any finder or broker who will
demand payment of any fee or commission from the other party. The Company on the one hand, and the Investor, on the other hand, agree
to indemnify the other against and hold the other harmless from any and all liabilities to any person claiming brokerage commissions or
finder’s fees on account of services purported to have been rendered on behalf of the indemnifying party in connection with this
Agreement or the transactions contemplated hereby.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF,
the parties hereto have caused this Standby Equity Purchase Agreement to be executed by the undersigned, thereunto duly authorized, as
of the date first set forth above.
|
COMPANY: |
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SPECTAIRE HOLDINGS INC. |
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By: |
/s/ Brian Semkiw |
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Name: |
Brian Semkiw |
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Title: |
CEO |
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INVESTOR: |
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YA II PN, Ltd. |
|
|
|
By: |
Yorkville Advisors Global, LP |
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Its: |
Investment Manager |
|
|
|
|
|
By: |
Yorkville Advisors Global II, LLC |
|
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Its: |
General Partner |
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By: |
/s/ Matt Beckman |
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|
Name: |
Matt Beckman |
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Title: |
Member |
ANNEX I TO THE
STANDBY EQUITY PURCHASE AGREEMENT
DEFINITIONS
“Additional Shares”
shall have the meaning set forth in Section 2.03.
“Adjusted Advance Amount”
shall have the meaning set forth in Section 2.03
“Advance”
shall mean any issuance and sale of Advance Shares by the Company to the Investor pursuant to this Agreement.
“Advance Date”
shall mean the first Trading Day after expiration of the applicable Pricing Period for each Advance.
“Advance Notice”
shall mean a written notice in the form of Exhibit B attached hereto to the Investor executed by an officer of the Company and setting
forth the number of Advance Shares that the Company desires to issue and sell to the Investor.
“Advance Notice Date”
shall mean each date the Company is deemed to have delivered (in accordance with Section 2.01(b) of this Agreement) an Advance Notice
to the Investor, subject to the terms of this Agreement.
“Advance Shares”
shall mean the Common Shares that the Company shall issue and sell to the Investor pursuant to the terms of this Agreement.
“Affiliate”
shall have the meaning set forth in Section 3.07.
“Agreement”
shall have the meaning set forth in the preamble of this Agreement.
“Applicable Laws”
shall mean all applicable laws, statutes, rules, regulations, orders, executive orders, directives, policies, guidelines and codes having
the force of law, whether local, national, or international, as amended from time to time, including without limitation (i) all applicable
laws that relate to money laundering, terrorist financing, financial record keeping and reporting, (ii) all applicable laws that relate
to anti-bribery, anti-corruption, books and records and internal controls, including the United States Foreign Corrupt Practices Act of
1977, and (iii) any Sanctions laws.
“Average Price”
shall mean a price per Share equal to the quotient obtained by dividing (i) the aggregate gross purchase price paid by the Investor for
all Shares purchased pursuant to this Agreement, by (ii) the aggregate number of Shares issued pursuant to this Agreement.
“Black Out Period”
shall have the meaning set forth in Section 6.04.
“Closing”
shall have the meaning set forth in Section 2.05.
“Commitment Amount”
shall mean $25,000,000 of Common Shares.
“Commitment Fee”
shall have the meaning set forth in Section 11.04.
“Commitment Shares”
shall have the meaning set forth in Section 11.04.
“Commitment Period”
shall mean the period commencing on the Effective Date and expiring upon the date of termination of this Agreement in accordance with
Section 9.01.
“Common Shares”
shall have the meaning set forth in the recitals of this Agreement.
“Company”
shall have the meaning set forth in the preamble of this Agreement.
“Company Indemnitees”
shall have the meaning set forth in Section 5.02.
“Condition Satisfaction
Date” shall have the meaning set forth in Annex II.
“Daily Traded Amount”
shall mean the daily trading volume of the Company’s Common Shares on the Principal Market during regular trading hours as reported
by Bloomberg L.P.
“Disclosure Schedule”
shall have the meaning set forth in Article IV.
“Effective Date”
shall mean the date hereof.
“Environmental Laws”
shall have the meaning set forth in Section 4.13.
“Exchange Act”
shall mean the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exchange Cap”
shall have the meaning set forth in Section 2.02(c).
“Excluded Day”
shall have the meaning set forth in Section 2.03.
“Hazardous Materials”
shall have the meaning set forth in Section 4.13.
“Indemnified Liabilities”
shall have the meaning set forth in Section 5.01.
“Investor”
shall have the meaning set forth in the preamble of this Agreement.
“Investor Indemnitees”
shall have the meaning set forth in Section 5.01.
“Market Price”
shall mean the lowest daily VWAP of the Common Shares during the Pricing Period, other than the daily VWAP on an Excluded Day.
“Material Adverse Effect”
shall mean any event, occurrence or condition that has had or would reasonably be expected to have (i) a material adverse effect on the
legality, validity or enforceability of this Agreement or the transactions contemplated herein, (ii) a material adverse effect on the
results of operations, assets, business or condition (financial or otherwise) of the Company and its Subsidiaries, taken as a whole, or
(iii) a material adverse effect on the Company’s ability to perform in any material respect on a timely basis its obligations under
this Agreement.
“Material Outside Event”
shall have the meaning set forth in Section 6.10.
“Maximum Advance Amount”
in respect of each Advance Notice means the greater of (i) an amount equal to one hundred percent (100%) of the average of the Daily Traded
Amount during the five consecutive Trading Days immediately preceding an Advance Notice, and (ii) five hundred thousand (500,000) Common
Shares.
“Minimum Acceptable
Price” shall mean the minimum price notified by the Company to the Investor in each Advance Notice, if applicable.
“OFAC” shall
have the meaning set forth in Section 4.31.
“Ownership Limitation”
shall have the meaning set forth in Section 2.02(a).
“Person”
shall mean an individual, a corporation, a partnership, a limited liability company, a trust or other entity or organization, including
a government or political subdivision or an agency or instrumentality thereof.
“Plan of Distribution”
shall mean the section of a Registration Statement disclosing the plan of distribution of the Shares.
“Pricing Period”
shall mean the three consecutive Trading Days commencing on the Advance Notice Date.
“Principal Market”
shall mean the Nasdaq Stock Market; provided however, that in the event the Common Shares are ever listed or traded on the New York Stock
Exchange, or the NYSE American, then the “Principal Market” shall mean such other market or exchange on which the Common Shares
are then listed or traded to the extent such other market or exchange is the principal trading market or exchange for the Common Shares.
“Prospectus”
shall mean any prospectus (including, without limitation, all amendments and supplements thereto) used by the Company in connection with
a Registration Statement, including documents incorporated by reference therein.
“Prospectus Supplement”
shall mean any prospectus supplement to a Prospectus filed with the SEC pursuant to Rule 424(b) under the Securities Act, including documents
incorporated by reference therein.
“Purchase Price”
shall mean the price per Advance Share obtained by multiplying the Market Price by 97%.
“Registration Limitation”
shall have the meaning set forth in Section 2.02(b).
“Registration Statement”
shall have the meaning set forth in the Registration Rights Agreement.
“Registrable Securities”
shall have the meaning set forth in the Registration Rights Agreement.
“Regulation D”
shall mean the provisions of Regulation D promulgated under the Securities Act.
“Sanctions”
shall have the meaning set forth in Section 4.31.
“Sanctioned Countries”
shall have the meaning set forth in Section 4.31.
“SEC” shall
mean the U.S. Securities and Exchange Commission.
“SEC Documents”
shall mean (1) any registration statement on Form S-4 filed by the Company with the SEC, including the 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 of such registration statement under the Securities Act, (2) any proxy statement or prospectus filed by the Company
with the SEC, including all documents incorporated or deemed incorporated therein by reference, whether or not included in a registration
statement on Form S-4, in the form in which such proxy statement or prospectus has most recently been filed with the SEC pursuant to Rule
424(b) under the Securities Act, (3) all reports, schedules, registrations, forms, statements, information and other documents filed with
or furnished to the SEC by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act during the two years prior to
the date hereof, including, without limitation, the Current Report, (4) each Registration Statement, as the same may be amended from time
to time, the Prospectus contained therein and each Prospectus Supplement thereto and (5) all information contained in such filings and
all documents and disclosures that have been and heretofore shall be incorporated by reference therein.
“Securities Act”
shall have the meaning set forth in the recitals of this Agreement.
“Settlement Document”
shall have the meaning set forth in Section 2.02(a)..
“Shares”
shall mean the Commitment Shares and the Common Shares to be issued from time to time hereunder pursuant to an Advance.
“Subsidiaries”
shall mean any Person in which the Company, directly or indirectly, (x) owns a majority of the outstanding capital stock or holds a majority
of the equity or similar interest of such Person or (y) controls or operates all or substantially all of the business, operations or administration
of such Person, and the foregoing are collectively referred to herein as “Subsidiaries.”
“Trading Day”
shall mean any day during which the Principal Market shall be open for business.
“Transaction Documents”
means, collectively, this Agreement, the Registration Rights Agreement, and each of the other agreements and instruments entered into
or delivered by any of the parties hereto in connection with the transactions contemplated hereby and thereby, as may be amended from
time to time.
“VWAP” shall
mean for any Trading Day, the daily volume weighted average price of the Common Shares for such Trading Day on the Principal Market during
regular trading hours as reported by Bloomberg L.P.
ANNEX II TO THE
STANDBY EQUITY PURCHASE AGREEMENT
CONDITIONS PRECEDENT TO THE RIGHT OF THE
COMPANY TO DELIVER AN ADVANCE NOTICE
The right of the Company to
deliver an Advance Notice and the obligations of the Investor hereunder with respect to an Advance are subject to the satisfaction or
waiver, on each Advance Notice Date (a “Condition Satisfaction Date”), of each of the following conditions:
| (a) | Accuracy of the Company’s Representations and Warranties. The representations and warranties
of the Company in this Agreement shall be true and correct in all material respects as of the Advance Notice Date, except to the extend
such representations and warranties are as of another date, such representations and warranties shall be true and correct as of such other
date. |
| (b) | The Company shall paid all portions of the Commitment Fee that has come due, including the issuance of
the Commitment Shares, in accordance with Section 11.04, all of which Commitment Fee shall be fully earned and non-refundable, regardless
of whether any Advance Notices are made or settled hereunder or any subsequent termination of this Agreement. |
| (c) | Registration of the Common Shares with the SEC. There is an effective Registration Statement pursuant
to which the Investor is permitted to utilize the prospectus thereunder to resell all of the Common Shares issuable pursuant to such Advance
Notice. The Current Report shall have been filed with the SEC and the Company shall have filed with the SEC in a timely manner all reports,
notices and other documents required under the Exchange Act and applicable SEC regulations during the twelve-month period immediately
preceding the applicable Condition Satisfaction Date. |
| (d) | Authority. The Company shall have obtained all permits and qualifications required by any applicable
state for the offer and sale of all the Common Shares issuable pursuant to such Advance Notice, or shall have the availability of exemptions
therefrom. The sale and issuance of such Common Shares shall be legally permitted by all laws and regulations to which the Company is
subject. |
| (e) | Board. The board of directors of the Company has approved the transactions contemplated by the
Transaction Documents; said approval has not been amended, rescinded or modified and remains in full force and effect as of the date hereof,
and a true, correct and complete copy of such resolutions duly adopted by the board of directors of the Company shall have been provided
to the Investor. |
| (f) | No Material Outside Event. No Material Outside Event shall have occurred and be continuing. |
| (g) | Performance by the Company. The Company shall have performed, satisfied and complied in all material
respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company
at or prior the applicable Condition Satisfaction Date. |
| (h) | No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall
have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction that prohibits or
directly, materially and adversely affects any of the transactions contemplated by this Agreement. |
| (i) | No Suspension of Trading in or Delisting of Common Shares. Trading in the Common Shares shall not
have been suspended by the SEC, the Principal Market or FINRA, the Company shall not have received any final and non-appealable notice
that the listing or quotation of the Common Shares on the Principal Market shall be terminated on a date certain (unless, prior to such
date certain, the Common Shares is listed or quoted on any subsequent Principal Market), nor shall there have been imposed any suspension
of, or restriction on, accepting additional deposits of the Common Shares, electronic trading or book-entry services by DTC with respect
to the Common Shares that is continuing, the Company shall not have received any notice from DTC to the effect that a suspension of, or
restriction on, accepting additional deposits of the Common Shares, electronic trading or book-entry services by DTC with respect to the
Common Shares is being imposed or is contemplated (unless, prior to such suspension or restriction, DTC shall have notified the Company
in writing that DTC has determined not to impose any such suspension or restriction). |
| (j) | Authorized. All of the Shares issuable pursuant to the applicable Advance Notice shall have been
duly authorized by all necessary corporate action of the Company. All Shares relating to all prior Advance Notices required to have been
received by the Investor under this Agreement shall have been delivered to the Investor in accordance with this Agreement. |
| (k) | Executed Advance Notice. The representations contained in the applicable Advance Notice shall be
true and correct in all material respects as of the applicable Condition Satisfaction Date. |
Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS
AGREEMENT (this “Agreement”) dated as of May 17, 2024 is made by and between YA II PN, LTD., a Cayman Islands exempt
limited partnership (the “Investor”), and SPECTAIRE HOLDINGS INC., a company incorporated under the laws of the State of Delaware
(the “Company”). The Investor and the Company may be referred to herein individually as a “Party” and collectively
as the “Parties.”
WHEREAS, the Company
and the Investor have entered into that certain Standby Equity Purchase Agreement, dated as of the date hereof (the “Purchase
Agreement”), pursuant to which the Company may issue, from time to time, to the Investor up to $25 million of newly issued shares
of the Company’s shares of Common Stock, par value $0.0001 per share (the “Common Shares”); and
WHEREAS, pursuant to
the terms of, and in consideration for the Investor entering into, the Purchase Agreement, and to induce the Investor to execute and deliver
the Purchase Agreement, the Company has agreed to provide the Investor with certain registration rights under the Securities Act of 1933,
as amended, and the rules and regulations thereunder, or any similar successor statute (collectively, the “Securities Act”).
AGREEMENT
NOW, THEREFORE, in
consideration of the premises and the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Company and the Investor hereby agree as follows:
1. DEFINITIONS.
Capitalized terms used herein
and not otherwise defined herein shall have the respective meanings set forth in the Purchase Agreement. As used in this Agreement, the
following terms shall have the following meanings:
(a) “Business
Day” shall mean any day on which the New York Stock Exchange is open for trading, other than any day on which commercial banks
are authorized or required to be closed in New York City.
(b) “Effectiveness
Deadline” means, with respect to the initial Registration Statement filed hereunder, the 90th calendar day following the initial
filing hereof, provided, however, in the event the Company is notified by the U.S. Securities and Exchange Commission (“SEC”)
that the Registration Statement will not be reviewed or is no longer subject to further review and comments, the Effectiveness Deadline
as to such Registration Statement shall be the fifth Business Day following the date on which the Company is so notified if such date
precedes the date required above.
(c) “Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
(d) “Filing
Deadline” means, with respect to the initial Registration Statement required hereunder, the 21st calendar day following date
hereof.
(e) “Person”
means a corporation, a limited liability company, an association, a partnership, an organization, a business, an individual, a governmental
or political subdivision thereof or a governmental agency.
(f) “Prospectus”
means the prospectus included in a Registration Statement (including, without limitation, a prospectus that includes any information previously
omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A promulgated under the Securities
Act), as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion of the Registrable
Securities covered by a Registration Statement, and all other amendments and supplements to the Prospectus, including post-effective amendments,
and all material incorporated by reference or deemed to be incorporated by reference in such Prospectus.
(g) “Registrable
Securities” means all of (i) the Shares (as defined in the Purchase Agreement) and Commitment Shares (as defined in the Purchase
Agreement), (ii) any capital stock issued or issuable with respect to the Shares and Commitment Shares, including, without limitation,
(1) as a result of any stock split, stock dividend or other distribution, recapitalization or similar event or otherwise, and (2) shares
of capital stock of the Company into which the Common Shares are converted or exchanged and shares of capital stock of a successor entity
into which the Common Shares are converted or exchanged.
(h) “Registration
Statement” means any registration statement of the Company filed pursuant to this Agreement, including the Prospectus, amendments
and supplements to such registration statement or Prospectus, including post-effective amendments, all exhibits thereto, and all material
incorporated by reference or deemed to be incorporated by reference in such registration statement.
(i) “Required
Registration Amount” means (i) the Commitment Shares, and (i) such number of Common Shares as the Company reasomably beleieves
may be issued pursuant to the Purchase Agreement, subject to any cutback set forth in Section 2(e).
(j) “Rule
144” means Rule 144 under the Securities Act or any successor rule thereto.
(k) “Rule
415” means Rule 415 promulgated by the SEC pursuant to the Securities Act, as such Rule may be amended from time to time, or
any similar rule or regulation hereafter adopted by the SEC having substantially the same purpose and effect as such Rule.
(l) “SEC”
means the Securities and Exchange Commission or any other federal agency administering the Securities Act and the Exchange Act at the
time.
(m) “Securities
Act” shall have the meaning set forth in the Recitals above.
2. REGISTRATION.
(a) The
Company’s registration obligations set forth in this Section 2 including its obligations to file Registration Statements, obtain
effectiveness of Registration Statements, and maintain the continuous effectiveness of any Registration Statement that has been declared
effective shall begin on the date hereof and continue until all the earlier of (i) the date on which the Investor has sold all of the
Registrable Securities and (ii) the date of termination of the Purchase Agreement if as of such termination date the Investor holds no
Registrable Securities (the “Registration Period”).
(b) Subject
to the terms and conditions of this Agreement, the Company shall (i) as soon as practicable, but in no case later than the Filing Deadline,
prepare and file with the SEC an initial Registration Statement on Form S-3 (or, if the Company is not then eligible, on Form S-1) or
any successor form thereto covering the resale by the Investor of the Required Registration Amount in accordance with applicable SEC rules,
regulations and interpretations so as to permit the resale of such Registrable Securities by the Investor under Rule 415 at then prevailing
market prices (and not fixed prices). The Registration Statement shall contain “Selling Stockholders” and “Plan
of Distribution” sections. The Company shall use its best efforts to have the Registration Statement declared effective by the
SEC as soon as practicable, but in no event later than the Effectiveness Deadline. By 9:30 am on the business day following the date of
effectiveness, the Company shall file with the SEC in accordance with Rule 424 under the Securities Act the final Prospectus to be used
in connection with sales pursuant to such Registration Statement. Prior to the filing of the Registration Statement with the SEC, the
Company shall furnish a draft of the Registration Statement to the Investor for their review and comment. The Investor shall furnish comments
on the Registration Statement to the Company within 24 hours of the receipt thereof from the Company.
(c) Sufficient
Number of Shares Registered. If at any time all Registrable Securities are not covered by a Registration Statement filed pursuant
to Section 2(a) as a result of Section 2(e) or otherwise, the Company shall use its commercially reasonable efforts to file with the SEC
one or more additional Registration Statements so as to cover all of the Registrable Securities not covered by such initial Registration
Statement, in each case as soon as practicable (taking into account any position of the staff of the SEC with respect to the date on which
the Staff will permit such additional Registration Statement(s) to be filed with the SEC and the rules and regulations of the SEC). The
Company shall use its commercially reasonable efforts to cause each such new Registration Statement to become effective as soon as reasonably
practicable following the filling thereof with the SEC.
(d) During
the Registration Period, the Company shall (i) promptly prepare and file with the SEC such amendments (including post-effective amendments)
and supplements to a Registration Statement and the Prospectus used in connection with a Registration Statement, which Prospectus is to
be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective
at all times during the Registration Period, (ii) prepare and file with the SEC additional Registration Statements in order to register
for resale under the Securities Act all of the Registrable Securities; (iii) cause the related Prospectus to be amended or supplemented
by any required Prospectus supplement (subject to the terms of this Agreement), and as so supplemented or amended to be filed pursuant
to Rule 424; (iv) respond as promptly as reasonably possible to any comments received from the SEC with respect to a Registration Statement
or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from
and to the SEC relating to a Registration Statement (provided that the Company may excise any information contained therein which would
constitute material non-public information as to any Investor which has not executed a confidentiality agreement with the Company); and
(v) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered
by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the
intended methods of disposition by the seller or sellers thereof as set forth in such Registration Statement. In the case of amendments
and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section
2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Exchange
Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments
or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to
amend or supplement the Registration Statement.
(e) Reduction
of Registrable Securities Included in a Registration Statement. Notwithstanding anything contained herein, in the event that the SEC
requires the Company to reduce the number of Registrable Securities to be included in a Registration Statement in order to allow the Company
to rely on Rule 415 with respect to a Registration Statement, then the Company shall reduce the number of Registrable Securities to be
included in such Registration Statement (after consultation with the Investor as to the specific Registrable Securities to be removed
therefrom) to the maximum number of securities as is permitted to be registered by the SEC. In the event of any reduction in Registrable
Securities pursuant to this paragraph, the Company shall use its commercially reasonable efforts to file one or more New Registration
Statements with the Commission in accordance with Section 2(c) until such time as all Registrable Securities have been included in Registration
Statements that have been declared effective and the Prospectuses contained therein are available for use by the Investor.
(f) Failure
to File or Obtain Effectiveness of the Registration Statement or Remain Current. If: (i) a Registration Statement is not filed on
or prior to its Filing Date, or (ii) a Registration Statement is not declared effective on or prior to the Effectiveness Deadline, or
the Company fails to file with the SEC a request for acceleration in accordance with Rule 461 promulgated under the Securities Act, within
five business days of the date that the Company is notified (orally or in writing, whichever is earlier) by the SEC that a Registration
Statement will not be “reviewed,” or not subject to further review, or (iii) after the effectiveness, a Registration Statement
ceases for any reason to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (iv)
the Investor is not permitted to utilize the Prospectus therein to resell such Registrable Securities for more than 315 consecutive calendar
days or more than an aggregate of 30 calendar days during any 12-month period (which need not be consecutive calendar days), or (v) if
after the date that is six months from the date hereof, the Company does not have available adequate current public information as set
forth in Rule 144(c) (any such failure or breach being referred to as an “Event”), then in addition to any other rights
the Investor may have hereunder or under applicable law, the Company shall be in breach of the term and conditions of this Agreement and
such Event shall be deemed an event of default for so long as such Event remains uncured. During the period of the existence of an uncured
Event, the Investor shall have no obligation to accept an Advance Notice or accept or purchase any Advance Shares (other than any Advance
Shares purchased by the Investor prior to the occurrence of the Event).
(g) Piggy-Back
Registrations. If at any time there is not an effective Registration Statement covering all of the Registrable Securities and the
Company proposes to register the offer and sale of any Common Shares under the Securities Act (other than a registration (i) pursuant
to a Registration Statement on Form S-8 ((or other registration solely relating to an offering or sale to employees or directors of the
Company pursuant to any employee stock plan or other employee benefit arrangement), (ii) pursuant to a Registration Statement on Form
S-4 (or similar form that relates to a transaction subject to Rule 145 under the Securities Act or any successor rule thereto), or (iii)
in connection with any dividend or distribution reinvestment or similar plan), whether for its own account or for the account of one or
more stockholders of the Company and the form of Registration Statement to be used may be used for any registration of Registrable Securities,
the Company shall give prompt written notice (in any event no later than five days prior to the filing of such Registration Statement)
to the holders of Registrable Securities of its intention to effect such a registration and, shall include in such registration all Registrable
Securities with respect to which the Company has received written requests for inclusion from the holders of Registrable Securities; provided,
however, that, the Company shall not be required to register any Registrable Securities pursuant to this Section 2(g) that have
been sold or may permanently be sold without any restrictions pursuant to Rule 144, as determined by the counsel to the Company pursuant
to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent.
(h) No
Inclusion of Other Securities. In no event shall the Company include any securities other than Registrable Securities on any Registration
Statement pursuant to Section 2(a) or Section 2(c) without consulting with the Investor prior to filing such Registration Statement with
the SEC.
3. RELATED
OBLIGATIONS.
(a) The
Company shall, not less than three Business Days prior to the filing of each Registration Statement and not less than one Business Day
prior to the filing of any related amendments and supplements to all Registration Statements (except for annual reports on Form 10-K,
supplements and amendments to update the Registration Statement solely for information reflected in the Company’s annual reports
on Form 10-K, quarterly reports on Form 10-Q or current reports on Form 8-K), furnish to each Investor copies of all such documents proposed
to be filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the reasonable
and prompt review of such Investor. The Company shall not file a Registration Statement or any such Prospectus or any amendments or supplements
thereto to which the Investor shall reasonably object in good faith; provided that, the Company is notified of such objection in
writing no later than two (2) Trading Days after the Investors have been so furnished copies of a Registration Statement.
(b) The
Company shall furnish to each Investor whose Registrable Securities are included in any Registration Statement, without charge (i) at
least one copy (which may be in electronic form) of such Registration Statement as declared effective by the SEC and any amendment(s)
thereto, including financial statements and schedules, all documents incorporated therein by reference, all exhibits and each preliminary
prospectus, (ii) at least one copy (which may be in electronic form) of the final prospectus included in such Registration Statement and
all amendments and supplements thereto, and (iii) any documents, which are not publicly available through EDGAR, as such Investor may
reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.
(c) The
Company shall use its best efforts to (i) register and qualify the Registrable Securities covered by a Registration Statement under such
other securities or “blue sky” laws of such jurisdictions in the United States as any Investor reasonably requests, (ii) prepare
and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications
as may be necessary to maintain the effectiveness thereof during the Registration Period, (iii) take such other actions as may be necessary
to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions
reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company
shall not be required in connection therewith or as a condition thereto to (w) make any change to its articles of incorporation or by-laws,
(x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(c), (y) subject
itself to general taxation in any such jurisdiction, or (z) file a general consent to service of process in any such jurisdiction. The
Company shall promptly notify each Investor who holds Registrable Securities of the receipt by the Company of any notification with respect
to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue
sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threat of any proceeding
for such purpose.
(d) As
promptly as practicable after becoming aware of such event or development, the Company shall notify each Investor in writing of the happening
of any event as a result of which the Prospectus included in a Registration Statement, as then in effect, includes an untrue statement
of a material fact or omission 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 (provided that in no event shall such notice contain any material,
nonpublic information), and promptly prepare a supplement or amendment to such Registration Statement to correct such untrue statement
or omission and deliver one electronic copy of such supplement or amendment to the Investor. The Company shall also promptly notify each
Investor in writing (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and when a Registration
Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to each Investor
by email on the same day of such effectiveness), (ii) of any request by the SEC for amendments or supplements to a Registration Statement
or related prospectus or related information, and (iii) of the Company’s reasonable determination that a post-effective amendment
to a Registration Statement would be appropriate. The Company shall respond as promptly as reasonably practicable to any comments received
from the SEC with respect to a Registration Statement or any amendment thereto.
(e) The
Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement,
or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction within the United States of America
and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and
to notify each Investor who holds Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt
of actual notice of the initiation or threat of any proceeding for such purpose.
(f) Without
limiting any obligation of the Company under the Purchase Agreement, the Company shall use commercially reasonable efforts either to cause
all of the Registrable Securities covered by each Registration Statement to be listed on the Principal Market. The Company shall pay all
fees and expenses in connection with satisfying its obligation under this Section 3(f).
(g) The
Company shall hold in confidence and not make any disclosure of information concerning the Investor provided to the Company unless (i)
disclosure of such information is necessary to comply with federal or state securities laws, (ii) the disclosure of such information is
necessary to avoid or correct a misstatement or omission in any Registration Statement, (iii) the release of such information is ordered
pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction, or (iv) such
information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement.
The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court
or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor and allow such Investor,
at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
(h) The
Company shall cooperate with the holders of the Registrable Securities to facilitate the timely preparation and delivery of certificates
representing the Registrable Securities to be sold pursuant to such Registration Statement or Rule 144 free of any restrictive legends
and representing such number of Common Shares and registered in such names as the holders of the Registrable Securities may reasonably
request a reasonable period of time prior to sales of Registrable Securities pursuant to such Registration Statement or Rule; provided,
that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust
Company’s Direct Registration System.
(i) The
Company shall use its best efforts to cause the Registrable Securities to be registered with or approved by such other governmental agencies
or authorities as may be necessary to consummate the disposition of such Registrable Securities.
(j) The
Company shall otherwise use its best efforts to comply with all applicable rules and regulations of the SEC in connection with any registration
hereunder.
(k) Within
two business days after a Registration Statement which covers Registrable Securities is declared effective by the SEC, the Company shall
deliver, and shall cause legal counsel for the Company to deliver, to the transfer agent for such Registrable Securities (with copies
to the Investor whose Registrable Securities are included in such Registration Statement) confirmation that such Registration Statement
has been declared effective by the SEC.
(l) The
Company shall take all other reasonable actions necessary to expedite and facilitate disposition by each Investor of Registrable Securities
pursuant to a Registration Statement.
4. OBLIGATIONS
OF THE INVESTOR.
(a) The
Investor agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3(d)
such Investor shall as soon as reasonably practicable discontinue disposition of Registrable Securities pursuant to any Registration Statement
covering such Registrable Securities until the Investor’s receipt of the copies of the supplemented or amended prospectus contemplated
by Section 3(d) or receipt of notice that no supplement or amendment is required. Notwithstanding anything to the contrary, subject to
compliance with the securities laws, the Company shall cause its transfer agent to deliver unlegended certificates for Common Shares to
a transferee of an Investor in accordance with the terms of the Purchase Agreement in connection with any sale of Registrable Securities
with respect to which an Investor has entered into a contract for sale prior to the Investor’s receipt of a notice from the Company
of the happening of any event of the kind described in Section 3(d) and for which the Investor has not yet settled.
(b) The Investor covenants
and agrees that it will comply with the prospectus delivery requirements of the Securities Act as applicable to it or an exemption
therefrom in connection with sales of Registrable Securities pursuant to the Registration Statement.
(c) The
Investor, by its acceptance of the Registrable Securities, agrees to cooperate with the Company as reasonably requested by the Company
in connection with the preparation and filing of each Registration Statement hereunder, unless the Investor has notified the Company in
writing of the Investor’s election to exclude all of the Investor’s Registrable Securities from such Registration Statement.
5. EXPENSES
OF REGISTRATION.
All expenses incurred by the
Company in complying with its obligations pursuant to this Agreement and in connection with the registration and disposition of Registrable
Securities shall be paid by the Company, including, without limitation, all registration, listing and qualifications fees, printers, fees
and expenses of the Company’s counsel and accountants (except legal fees of Investor’s counsel associated with the review of the
Registration Statement).
6. INDEMNIFICATION.
With respect to Registrable
Securities which are included in a Registration Statement under this Agreement:
(a) To
the fullest extent permitted by law, the Company will, and hereby does, indemnify, hold harmless and defend the Investor, the directors,
officers, partners, employees, agents, representatives of, and each Person, if any, who controls any Investor within the meaning of the
Securities Act or the Exchange Act (each, an “Indemnified Person”), against any losses, claims, damages, liabilities,
judgments, fines, penalties, charges, costs, reasonable attorneys’ fees, amounts paid in settlement or expenses, joint or several
(collectively, “Claims”) incurred in investigating, preparing or defending any action, claim, suit, inquiry, proceeding,
investigation or appeal taken from the foregoing by or before any court or governmental, administrative or other regulatory agency, body
or the SEC, whether pending or threatened, whether or not an indemnified party is or may be a party thereto (“Indemnified Damages”),
to which any of them may become subject insofar as such Claims (or actions or proceedings, whether commenced or threatened, in respect
thereof) arise out of or are based upon: (i) any untrue statement or alleged untrue statement of a material fact in a Registration Statement
or any post-effective amendment thereto or in any filing made in connection with the qualification of the offering under the securities
or other “blue sky” laws of any jurisdiction in which Registrable Securities are offered (“Blue Sky Filing”),
or the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein
not misleading; (ii) any untrue statement or alleged untrue statement of a material fact contained in any final prospectus (as amended
or supplemented, if the Company files any amendment thereof or supplement thereto with the SEC) or the omission or alleged omission to
state therein any material fact necessary to make the statements made therein, in light of the circumstances under which the statements
therein were made, not misleading; or (iii) any violation or alleged violation by the Company of the Securities Act, the Exchange Act,
any other law, including, without limitation, any state securities law, or any rule or regulation there under relating to the offer or
sale of the Registrable Securities pursuant to a Registration Statement (the matters in the foregoing clauses (i) through (iii) being,
collectively, “Violations”). The Company shall reimburse the Investors and each such controlling person promptly as
such expenses are incurred and are due and payable, for any legal fees or disbursements that are reasonably incurred by them or other
reasonable expenses incurred by them in connection with investigating or defending any such Claim. Notwithstanding anything to the contrary
contained herein, the indemnification agreement contained in this Section 6(a): (x) shall not apply to a Claim by an Indemnified Person
arising out of or based upon a Violation which occurs in reliance upon and in conformity with information furnished in writing to the
Company by such Indemnified Person expressly for use in connection with the preparation of the Registration Statement or any such amendment
thereof or supplement thereto; (y) shall not be available to the extent such Claim is based on a failure of the Investor to deliver or
to cause to be delivered the prospectus made available by the Company, if such prospectus was timely made available by the Company pursuant
to Section 3(c); and (z) shall not apply to amounts paid in settlement of any Claim if such settlement is effected without the prior
written consent of the Company, which consent shall not be unreasonably withheld. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Indemnified Person.
(b) In
connection with a Registration Statement, the Investor agrees to indemnify, hold harmless and defend, to the same extent and in the same
manner as is set forth in Section 6(a), the Company, each of its directors, each of its officers, employees, representatives, or agents
and each Person, if any, who controls the Company within the meaning of the Securities Act or the Exchange Act (each an “Indemnified
Party”), against any Claim or Indemnified Damages to which any of them may become subject, under the Securities Act, the Exchange
Act or otherwise, insofar as such Claim or Indemnified Damages arise out of or is based upon any Violation, in each case to the extent,
and only to the extent, that such Violation occurs (i) in reliance upon and in conformity with written information furnished to the Company
by such Investor expressly for use in connection with such Registration Statement or (ii) from the Investor’s violation of any prospecuts
delivery requirements under the Securities Act, the Exchange Act, any other law, including, without limitation, any state securities law,
or any rule or regulation there under relating to the offer or sale of the Registrable Securities pursuant to a Registration Statement;
and, subject to Section 6(d), such Investor will reimburse any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such Claim; provided, however, that the indemnity agreement contained in this Section 6(b) and the
agreement with respect to contribution contained in Section 7 shall not apply to amounts paid in settlement of any Claim if such settlement
is effected without the prior written consent of such Investor, which consent shall not be unreasonably withheld, conditioned or delayed;
provided, further, however, that, absent fraud or gross negligence, the Investor shall be liable under this Section 6(b) for only that
amount of a Claim or Indemnified Damages as does not exceed the net proceeds to such Investor as a result of the sale of Registrable Securities
pursuant to such Registration Statement. Such indemnity shall remain in full force and effect regardless of any investigation made by
or on behalf of such Indemnified Party. Notwithstanding anything to the contrary contained herein, the indemnification agreement contained
in this Section 6(b) with respect to any prospectus shall not inure to the benefit of any Indemnified Party if the untrue statement or
omission of material fact contained in the prospectus was corrected and such new prospectus was delivered to each Investor prior to such
Investor’s use of the prospectus to which the Claim relates.
(c) Promptly
after receipt by an Indemnified Person or Indemnified Party under this Section 6 of notice of the commencement of any action or proceeding
(including any governmental action or proceeding) involving a Claim, such Indemnified Person or Indemnified Party shall, if a Claim in
respect thereof is to be made against any indemnifying party under this Section 6, deliver to the indemnifying party a written notice
of the commencement thereof, and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party
so desires, jointly with any other indemnifying party similarly noticed, to assume control of the defense thereof with counsel reasonably
mutually satisfactory to the indemnifying party and the Indemnified Person or the Indemnified Party, as the case may be; provided, however,
that an Indemnified Person or Indemnified Party shall have the right to retain its own counsel with the fees and expenses of not more
than one (1) counsel for such Indemnified Person or Indemnified Party to be paid by the indemnifying party, if, in the reasonable opinion
of counsel retained by the indemnifying party, the representation by such counsel of the Indemnified Person or Indemnified Party and the
indemnifying party would be inappropriate due to actual or potential differing interests between such Indemnified Person or Indemnified
Party and any other party represented by such counsel in such proceeding. The Indemnified Party or Indemnified Person shall cooperate
fully with the indemnifying party in connection with any negotiation or defense of any such action or claim by the indemnifying party
and shall furnish to the indemnifying party all information reasonably available to the Indemnified Party or Indemnified Person which
relates to such action or claim. The indemnifying party shall keep the Indemnified Party or Indemnified Person fully apprised at all times
as to the status of the defense or any settlement negotiations with respect thereto. No indemnifying party shall be liable for any settlement
of any action, claim or proceeding effected without its prior written consent; provided, however, that the indemnifying party shall not
unreasonably withhold, delay or condition its consent. No indemnifying party shall, without the prior written consent of the Indemnified
Party or Indemnified Person, which consent shall not be unreasonably withheld, conditioned or delayed, consent to entry of any judgment
or enter into any settlement or other compromise which does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party or Indemnified Person of a release from all liability in respect to such claim or litigation. Following
indemnification as provided for hereunder, the indemnifying party shall be subrogated to all rights of the Indemnified Party or Indemnified
Person with respect to all third parties, firms or corporations relating to the matter for which indemnification has been made. The failure
to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action shall not relieve
such indemnifying party of any liability to the Indemnified Person or Indemnified Party under this Section 6, except to the extent that
the indemnifying party is prejudiced in its ability to defend such action.
(d) The
indemnification required by this Section 6 shall be made by periodic payments of the amount thereof during the course of the investigation
or defense, as and when bills are received or Indemnified Damages are incurred.
(e) The
indemnity agreements contained herein shall be in addition to (i) any cause of action or similar right of the Indemnified Party or
Indemnified Person against the indemnifying party or others, and (ii) any liabilities the indemnifying party may be subject to pursuant
to the law.
7. CONTRIBUTION.
To the extent any indemnification
by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect
to any amounts for which it would otherwise be liable under Section 6 to the fullest extent permitted by law; provided, however, that:
(i) no seller of Registrable Securities guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any seller of Registrable Securities who was not guilty of fraudulent misrepresentation; and
(ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller
from the sale of such Registrable Securities.
8. REPORTS
UNDER THE EXCHANGE ACT.
The Company represents, warrants,
and covenants to the following:
(a) The
Company is subject to the reporting requirements of section 13 or 15(d) of the Exchange Act and has filed all required reports under section
13 or 15(d) of the Exchange Act during the 12 months prior to the date hereof (or for such shorter period that the issuer was required
to file such reports), other than Form 8-K reports.
(b) During
the Registration Period, the Company shall file with the SEC in a timely manner all required reports under section 13 or 15(d) of the
Exchange Act (it being understood that nothing herein shall limit the Company’s obligations under the Purchase Agreement) and such
reports shall conform to the requirement of the Exchange Act and the SEC for filing thereunder.
(c) The
Company shall furnish to the Investor so long as such Investor owns Registrable Securities, promptly upon request, (i) a written statement
by the Company that it has complied with the reporting requirements of Rule 144, (ii) a copy of the most recent annual or quarterly report
of the Company and such other reports and documents so filed by the Company, and (iii) such other information as may be reasonably requested
to permit the Investor to sell such securities pursuant to Rule 144 without registration.
9. AMENDMENT
OF REGISTRATION RIGHTS.
Provisions of this Agreement
may be amended and the observance thereof may be waived (either generally or in a particular instance and either retroactively or prospectively),
only with the written consent of the Company and the Investor. Any amendment or waiver effected in accordance with this Section 9
shall be binding upon each of the Investor and the Company. No such amendment shall be effective to the extent that it applies to fewer
than all of the holders of the Registrable Securities. No consideration shall be offered or paid to any Person to amend or consent to
a waiver or modification of any provision of any of this Agreement unless the same consideration also is offered to all of the parties
to this Agreement.
10. MISCELLANEOUS.
(a) A
Person is deemed to be a holder of Registrable Securities whenever such Person owns or is deemed to own of record such Registrable Securities
or owns the right to receive the Registrable Securities. If the Company receives conflicting instructions, notices or elections from two
or more Persons with respect to the same Registrable Securities, the Company shall act upon the basis of instructions, notice or election
received from the registered owner of such Registrable Securities.
(b) No
Other Registrations. The Company shall not include any other securities on a Registration Statement which includes Registrable Securities
unless otherwise agreed by the Investor.
(c) Any
notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement must be in writing
and will be deemed to have been delivered pursuant to the notice provisions of the Purchase Agreement or to such other address and/or
electronic mail address and/or to the attention of such other person as the recipient party has specified by written notice given to each
other party five (5) days prior to the effectiveness of such change. Written confirmation of receipt (A) given by the recipient of such
notice, consent, waiver or other communication, (B) electronically generated by the sender’s email service provider containing the
time, date, and recipient email or (C) provided by a courier or overnight courier service shall be rebuttable evidence of personal service,
receipt by email or receipt from a nationally recognized overnight delivery service in accordance with this section.
(d) Failure
of any party to exercise any right or remedy under this Agreement or otherwise, or delay by a party in exercising such right or remedy,
shall not operate as a waiver thereof.
(e) The
laws of the State of New York shall govern all issues concerning the relative rights of the Company and the Investor as its stockholder.
All other questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by the internal
laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of
New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York.
Each party hereby irrevocably submits to the non-exclusive jurisdiction of the Supreme Court of the State of New York, sitting in New
York County, New York and federal courts for the Southern District of New York sitting New York, New York, for the adjudication of any
dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives,
and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such
court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action
or proceeding by mailing a copy thereof to such party at the address for such notices to it under this Agreement and agrees that such
service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit
in any way any right to serve process in any manner permitted by law. If any provision of this Agreement shall be invalid or unenforceable
in any jurisdiction, such invalidity or unenforceability shall not affect the validity or enforceability of the remainder of this Agreement
in that jurisdiction or the validity or enforceability of any provision of this Agreement in any other jurisdiction. EACH PARTY HEREBY
IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
(f) This
Agreement shall inure to the benefit of and be binding upon the permitted successors and assigns of each of the parties hereto.
(g) The
headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.
(h) This
Agreement may be executed in identical counterparts, both of which shall be considered one and the same agreement and shall become effective
when counterparts have been signed by each party and delivered to the other party. Electronically scanned and delivered signatures (including
any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures
and Records Act or other applicable law, e.g., www.docusign.com), including by e-mail attachment, shall be deemed to have been duly and
validly delivered and be valid and effective for all purposes of this Agreement.
(i) Each
party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such
other agreements, certificates, instruments and documents, as the other party may reasonably request in order to carry out the intent
and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.
(j) The
language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent and no rules of
strict construction will be applied against any party.
(k) This
Agreement is intended for the benefit of the parties hereto and their respective permitted successors and assigns, and is not for the
benefit of, nor may any provision hereof be enforced by, any other Person.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF,
the Investor and the Company have caused their signature page to this Registration Rights Agreement to be duly executed as of the date
first above written.
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COMPANY: |
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SPECTAIRE HOLDINGS INC. |
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By: |
/s/ Brian Semkiw |
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Name: |
Brian Semkiw |
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Title: |
CEO |
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INVESTOR: |
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YA II PN, Ltd. |
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|
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By: |
Yorkville Advisors Global, LP |
|
Its: |
Investment Manager |
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|
|
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By: |
Yorkville Advisors Global II, LLC |
|
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Its: |
General Partner |
|
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|
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By: |
/s/ Matt Beckman |
|
|
Name: |
Matt Beckman |
|
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Title: |
Member |
14
v3.24.1.1.u2
Cover
|
May 17, 2024 |
Document Type |
8-K
|
Amendment Flag |
false
|
Document Period End Date |
May 17, 2024
|
Entity File Number |
001-40976
|
Entity Registrant Name |
Spectaire Holdings INC.
|
Entity Central Index Key |
0001844149
|
Entity Tax Identification Number |
98-1578608
|
Entity Incorporation, State or Country Code |
DE
|
Entity Address, Address Line One |
155 Arlington St.
|
Entity Address, City or Town |
Watertown
|
Entity Address, State or Province |
MA
|
Entity Address, Postal Zip Code |
02472
|
City Area Code |
508
|
Local Phone Number |
213-8991
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false
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Entity Emerging Growth Company |
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Elected Not To Use the Extended Transition Period |
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Common stock, par value $0.0001 per share |
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Title of 12(b) Security |
Common stock, par value $0.0001 per share
|
Trading Symbol |
SPEC
|
Security Exchange Name |
NASDAQ
|
Redeemable Warrants, each whole warrant exercisable for one share of common stock, at an exercise price of $11.50 per share |
|
Title of 12(b) Security |
Redeemable Warrants, each whole warrant exercisable for one share of common stock, at an exercise price of $11.50 per share
|
Trading Symbol |
SPECW
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Security Exchange Name |
NASDAQ
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