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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): September 26, 2024
| Trio
Petroleum Corp. |
| (Exact
name of registrant as specified in its charter) |
| Delaware |
|
001-41643 |
|
87-1968201 |
(State
or other Jurisdiction
of
Incorporation) |
|
(Commission
File
Number) |
|
(IRS
Employer
Identification
No.) |
5401
Business Park South, Suite 115
Bakersfield,
CA 93309
(661)
324-3911
(Address
and telephone number, including area code, of registrant’s principal executive offices)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions:
| ☐ |
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| |
|
| ☐ |
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| |
|
| ☐ |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| |
|
| ☐ |
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities
registered pursuant to Section 12(b) of the Act: None.
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. |
ATM Agreement
On
September 26, 2024,
Trio Petroleum Corp., a Delaware corporation (the “Company”), entered into a Sales Agreement (the “ATM Agreement”)
with Spartan Capital Securities, LLC as agent (the “Sales Agent”) pursuant to which the Company may issue and sell shares
of its common stock, $0.0001 par value per share, having an aggregate offering price of up to $4,800,000
(the “Shares”), from time to time
through the Sales Agent (the “Offering”). On September 27, 2024,
the Company also filed a prospectus supplement with the Securities and Exchange Commission (the “Commission”)
in connection with the Offering (the “Prospectus
Supplement”) under its existing Registration Statement on Form S-3 (File No 333-281813), which became effective on September 10,
2024 (the “Registration Statement”).
Upon
delivery of a Sales Notice (as such term is defined in the ATM Agreement) and subject to the terms and conditions of the ATM Agreement,
the Sales Agent may sell the Shares by any method permitted by law deemed to be an “at the market offering” as defined in
Rule 415(a)(4) promulgated under the Securities Act of 1933, as amended (the “Securities Act”), including sales made directly
on or through the NYSE American or on any other existing trading market for the Company’s common stock.
The
Company will designate the maximum amount of common stock to be sold through the Sales Agent in any placement under the Offering. Subject
to the terms and conditions of the ATM Agreement, the Sales Agent has agreed to use its commercially reasonable efforts to sell on the
Company’s behalf all of the Shares requested to be sold by the Company. The Company may instruct the Sales Agent not to sell any
Shares if the sales cannot be effected at or above a price designated by the Company in a Sales Notice. The Company or the Sales Agent
may suspend the offering of the Shares being made through the Sales Agent under the ATM Agreement upon proper notice to the other party.
The Company and the Sales Agent each have the right, by giving written notice as specified in the ATM Agreement, to terminate the ATM
Agreement in each party’s sole discretion at any time.
The
ATM Agreement provides that the Sales Agent will be entitled to aggregate compensation for its services up to 3.0% of the gross sales
price of all Shares sold through the Sales Agent under the ATM Agreement. The Company has no obligation to sell any Shares under the
ATM Agreement. The Company has agreed in the ATM Agreement to provide indemnification and contribution to the Sales Agent against certain
liabilities, including liabilities under the Securities Act.
The
Shares will be offered and sold pursuant to the Registration Statement, and offerings of the Shares will be made only by means of the
Prospectus Supplement. This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of any offer to buy
the Shares, nor shall there be any offer, solicitation or sale of the Shares in any state in which such offer, solicitation or sale would
be unlawful prior to registration or qualification under the securities laws of such state.
The
foregoing description of the material terms of the ATM Agreement is qualified in its entirety by reference to the full text of the ATM
Agreement, a copy of which is filed as Exhibit 10.1 hereto and is incorporated herein by reference.
The
legal opinion of Ellenoff Grossman & Schole LLP, counsel to the Company, relating to the Shares being offered is filed as Exhibit
5.1 to this Current Report on Form 8-K.
Amendment
No. 1 to Peterson Note
As
reported in the Company’s Current Report on Form 8-K, filed with the Commission on April 1, 2024, on March 26, 2024, the Company borrowed
$125,000 from its consultant and former Chief Executive Officer, Michael L. Peterson, in connection with which the Company delivered
to Mr. Peterson an Unsecured Subordinated Promissory Note in the principal amount of $125,000 (the “Peterson Note”).
On
September 26, 2024, the Company entered into a letter agreement with Mr. Peterson (the “Amendment No. 1 to Peterson Note”)
(i) extending the maturity date from September 26, 2024 to October 28, 2024, (ii) permitting the Company to make the payment of the principal
of, or accrued interest on, the Peterson Note within five days after receiving written notice from Mr. Peterson of any such payment failure
when the same becomes due or payable and (iii) providing for the an extension fee of $5,000 to the principal of the Peterson Note and
the same extension fee for each additional extension of the maturity date of the Peterson Note as applicable.
The
above description of the Amendment No. 1 to Peterson Note is qualified in its entirety by the Amendment No. 1 to Peterson Note, a copy
of which are attached as Exhibit 10.2, respectively, to this Current Report on Form 8-K.
Amendment
No.3 to the Leasehold Acquisition and Development Option Agreement and Asset Acquisition
As
reported in the Company’s Current Report on Form 8-K, filed with the Commission on January 5, 2024 (the “January 5th Form
8-K), on November 10, 2023, the Company entered into a Leasehold Acquisition and Development Option Agreement (the “Asphalt Ridge
Option Agreement”) with Heavy Sweet Oil LLC (“Heavy Sweet”). Pursuant to the Asphalt Ridge Option Agreement, the Company
acquired an option to purchase up to a 20% production share in certain leases in a long-developed oil and gas area of eastern Utah, southwest
of Vernal, Utah, totaling 960 acres. Heavy Sweet holds the right to such leases below 500 ft depth from surface (the “Asphalt Ridge
Leases”) and the Company acquired the option to participate in Heavy Sweet’s initial 960 acre drilling and production program
on such Asphalt Ridge Leases (the “Asphalt Ridge Option”).
As
also reported in the January 5th Form 8-K, on December 29, 2023, the Company and Heavy Sweet entered into an Amendment
to Leasehold Acquisition and Development Agreement (“Amendment”), pursuant to which the Company and Heavy Sweet amended the Asphalt
Ridge Option Agreement to provide that, within three (3) business days of the effective date of the Amendment, the Company would fund
$200,000 of the $2,000,000 total purchase price in advance of Heavy Sweet satisfying the closing conditions set forth in the Asphalt
Ridge Option Agreement, in exchange for the Company receiving an immediate 2% interest in the Asphalt Ridge Leases, which advanced funds
would be used solely for the building of roads and related infrastructure in furtherance of the development plan (the “Development
Plan”).
As
report in the Company’s Current Report on Form 8-K, filed with the Commission on August 8, 2024, on August 5, 2024, the Company
and Heavy Sweet entered into Amendment No. 2 to the Asphalt Ridge Option Agreement (“Amendment No. 2”), pursuant to which
the Company and Heavy Sweet extended the expiration date of the option by two months from August 10, 2024 to October 10, 2024.
On
September 26, 2024, the Company and Heavy Sweet entered into Amendment No. 3 to the Asphalt Ridge Option Agreement (“Amendment
No. 3”), pursuant to which the Company and Heavy Sweet extended the expiration date of the option by two months from October 10,
2024 to December 10, 2024.
The
above description of Amendment No. 3 is qualified in its entirety by the text of Amendment No. 3, a copy of which is attached as Exhibit
10.3 to this Current Report on Form 8-K.
| Item
9.01. |
Financial
Statements and Exhibits. |
(d)
Exhibits.
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
Dated:
September 27, 2024
| Trio
Petroleum Corp. |
|
| |
|
|
| By: |
/s/
Robin Ross |
|
| Name: |
Robin
Ross |
|
| Title: |
Chief Executive Officer |
|
Exhibit 5.1
 |
1345 AVENUE OF THE AMERICAS,
11th FLOOR
NEW YORK, NEW YORK 10017
TELEPHONE: (212) 370-1300
FACSIMILE: (212) 370-7889
www.egsllp.com |
September 27, 2024
Trio Petroleum Corp.
5401 Business Park South, Suite 115
Bakersfield, CA 93309
Re: Registration Statement on Form S-3 (333-281813)
Ladies and Gentlemen:
We
have acted as counsel to Trio Petroleum Corp., a Delaware corporation (the “Company”), in connection with the above-referenced
registration statement (the “Registration Statement”), the base prospectus dated September 10, 2024 (the “Base
Prospectus”) and the prospectus supplement dated September 27, 2024 (the “Prospectus Supplement” and together
with the Base Prospectus, the “Prospectus”), relating to the offering by the Company of up to $4,800,000 of shares
(the “Shares”) of the Company’s common stock, par value $0.0001 per share (“Common Stock”). The Shares
are covered by the Registration Statement and we understand that the Shares are to be offered and sold in the manner described in the
Prospectus. This opinion is being delivered at the request of the Company and in accordance with the requirements of Item 601(b)(5) of
Regulation S-K promulgated by the Commission.
For purposes of this opinion,
we have examined such documents and reviewed such questions of law as we have considered necessary and appropriate for the purposes of
our opinion set forth below. In rendering our opinion, we have assumed the authenticity of all documents submitted to us as originals,
the genuineness of all signatures and the conformity to authentic originals of all documents submitted to us as copies. We have also assumed
the legal capacity for all purposes relevant hereto of all natural persons and, with respect to all parties to agreements or instruments
relevant hereto other than the Company, that such parties had the requisite power and authority (corporate or otherwise) to execute, deliver
and perform such agreements or instruments, that such agreements or instruments have been duly authorized by all requisite action (corporate
or otherwise), executed and delivered by such parties and that such agreements or instruments are the valid, binding and enforceable obligations
of such parties. As to questions of fact material to our opinions, we have relied upon certificates of officers of the Company and of
public officials.
Based upon and subject to the
foregoing, we are of the opinion that the Shares have been duly authorized and, when issued and paid for as described in the Prospectus,
will be validly issued, fully paid and non-assessable,.
We express no opinion as to matters
governed by any laws other than the Delaware General Corporation Law, the laws of the State of New York and the federal laws of the United
States of America, all as in effect on the date hereof.
We consent to the filing of this
opinion with the SEC as Exhibit 5.1 to the Company’s Current Report on Form 8-K filed on September 27, 2024, which is incorporated
by reference in the Prospectus. We also consent to the reference of our firm under the caption “Experts” in the Prospectus
and in each case in any amendment or supplement thereto. In giving this consent, we do not thereby admit that we are in the category
of persons whose consent is required under Section 7 and Section 11 of the Securities Act of 1933, as amended, or the rules and regulations
of the Securities and Exchange Commission promulgated thereunder, nor do we admit that we are experts with respect to any part of the
Prospectus within the meaning of the term “expert” as used in the Securities Act of 1933, as amended, or the related rules
and regulations of the Securities and Exchange Commission promulgated thereunder.
| Very truly yours, |
|
| |
|
| /s/ Ellenoff Grossman & Schole LLP |
|
| |
|
| Ellenoff Grossman & Schole LLP |
|
Exhibit
10.1
TRIO
PETROLEUM CORP.
COMMON
STOCK
SALES
AGREEMENT
September
26, 2024
Spartan
Capital Securities, LLC
45
Broadway, 19th Floor
New
York, NY 10006
Ladies
and Gentlemen:
Trio
Petroleum Corp., a Delaware corporation (the “Company”), confirms its agreement (this “Agreement”)
with Spartan Capital Securities, LLC (the “Sales Agent”), as follows:
1.
Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject
to the conditions set forth herein, it may issue and sell to or through the Sales Agent shares of the Company’s common stock, par
value $0.0001 per share (the “Common Stock”), subject to the limitations set forth in Section 3(b) hereof. The issuance
and sale of shares of Common Stock to or through the Sales Agent will be effected pursuant to the Registration Statement (as defined
below) filed by the Company and which was declared effective under the Securities Act (as defined below) by the U.S. Securities and Exchange
Commission (the “Commission”).
The
Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively, the “Securities Act”), with the Commission, not earlier than three years prior to the date hereof,
a shelf registration statement on Form S-3 (File No. 333- 281813) (the “Shelf Registration
Statement”), including a base prospectus, relating to certain securities, including the shares of Common Stock, to be issued
from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance
with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange
Act”). The Company has prepared a prospectus supplement to the base prospectus, which is included in the Shelf Registration
Statement, specifically relating to the offering of Common Stock pursuant to this Agreement (the “ATM Prospectus”).
The Company will furnish to the Sales Agent, for use by the Sales Agent, copies of the base prospectus included as part of such registration
statement at the time it became effective, as supplemented by the ATM Prospectus relating to the Placement Shares (as defined below).
Except where the context otherwise requires, such registration statement, as amended at the time of such registration statement’s
effectiveness for purposes of Section 11 of the Securities Act, including all documents filed as a part thereof or incorporated by reference
therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to
Rule 424(b) under the Securities Act or deemed to be a part of such registration statement pursuant to Rule 430B or 462(b) of the Securities
Act, is herein called the “Registration Statement.” The base prospectus, including all documents incorporated
therein by reference (to the extent such information has not been superseded or modified in accordance with Rule 412 under the Securities
Act (as qualified by Rule 430B(g) of the Securities Act)), and the ATM Prospectus, including all documents incorporated therein by reference
(to the extent such information has not been superseded or modified in accordance with Rule 412 under the Securities Act (as qualified
by Rule 430B(g) of the Securities Act)), each of which is included in the Registration Statement, as it or they may be supplemented from
time to time by any additional prospectus supplement, in the form in which such prospectus and/or ATM Prospectus have most recently been
filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act, together with any “issuer free writing
prospectus” (“Issuer Free Writing Prospectus”), as defined in Rule 433 of the Securities Act (“Rule
433”), relating to the Placement Shares (as defined below) that (i) is required to be filed with the Commission by the
Company or (ii) is exempt from filing pursuant to Rule 433(d)(5)(i), in each case in the form filed or required to be filed with the
Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g), is herein called
the “Prospectus.” Any reference herein to the Registration Statement, the Prospectus or any amendment or supplement
thereto shall be deemed to refer to and include the documents incorporated by reference therein, and any reference herein to the terms
“amend,” “amendment” or “supplement” with respect to the Registration Statement or the Prospectus
shall be deemed to refer to and include the filing after the execution hereof of any document with the Commission deemed to be incorporated
by reference therein. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment
or supplement thereto shall be deemed to include any copy filed with the Commission pursuant to either the Electronic Data Gathering
Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Applications (collectively “EDGAR”).
2.
Placements. Each time that the Company wishes to issue and sell shares of Common Stock through the Sales Agent, as agent, hereunder
(each, a “Placement”), it will notify the Sales Agent by e-mail notice (or other method mutually agreed to in writing
by the parties) (a “Placement Notice”) containing the parameters in accordance with which it desires the Common Stock
to be sold, which shall at a minimum include the number of shares of Common Stock to be issued (the “Placement Shares”),
the time period during which sales are requested to be made, any limitation on the number of shares of Common Stock that may be sold
in any one Trading Day (as defined in Section 3) and any minimum price below which sales may not be made, a form of which containing
such minimum sales parameters necessary is attached hereto as Schedule 1. The Placement Notice shall originate from any of the
individuals from the Company set forth on Schedule 2 (with a copy to each of the other individuals from the Company listed on
such schedule), and shall be addressed to each of the individuals from the Sales Agent set forth on Schedule 2, as such Schedule
2 may be amended from time to time. The Placement Notice shall be effective upon receipt by the Sales Agent unless and until (i)
in accordance with the notice requirements set forth in Section 4, the Sales Agent declines to accept the terms contained therein for
any reason, in its sole discretion, (ii) the entire amount of the Placement Shares have been sold, (iii) in accordance with the notice
requirements set forth in Section 4, the Company suspends or terminates the Placement Notice, (iv) the Company issues a subsequent Placement
Notice with parameters superseding those on the earlier dated Placement Notice, or (v) the Agreement has been terminated under the provisions
of Section 11. The amount of any discount, commission or other compensation to be paid by the Company to the Sales Agent in connection
with the sale of the Placement Shares through the Sales Agent, as agent, shall be as set forth in Schedule 3. It is expressly
acknowledged and agreed that neither the Company nor the Sales Agent will have any obligation whatsoever with respect to a Placement
or any Placement Shares unless and until the Company delivers a Placement Notice to the Sales Agent and the Sales Agent does not decline
such Placement Notice pursuant to the terms set forth above, and then only upon the terms specified therein and herein. In the event
of a conflict between the terms of this Agreement and the terms of a Placement Notice, the terms of the Placement Notice will control.
3.
Sale of Placement Shares by the Sales Agent.
(a)
Subject to the terms and conditions set forth herein, upon the Company’s issuance of a Placement Notice, and unless the sale of
the Placement Shares described therein has been declined, suspended, or otherwise terminated in accordance with the terms of this Agreement,
the Sales Agent, as agent for the Company, will use its commercially reasonable efforts consistent with its normal trading and sales
practices and applicable state and federal laws, rules and regulations and the rules of the NYSE American (the “Exchange”),
for the period specified in the Placement Notice, to sell such Placement Shares up to the amount specified by the Company in, and otherwise
in accordance with, the terms of such Placement Notice. If acting as agent hereunder, the Sales Agent will provide written confirmation
to the Company (including by e-mail correspondence to each of the individuals of the Company set forth on Schedule 2, if
receipt of such correspondence is actually acknowledged by any of the individuals to whom the notice is sent, other than via auto-reply)
no later than the opening of the trading day on which the Exchange is open for trading (the “Trading Day”)
immediately following the Trading Day on which it has made sales of Placement Shares hereunder setting forth the number of Placement
Shares sold on such day, the volume-weighted average price of the Placement Shares, the compensation payable by the Company to the Sales
Agent pursuant to Section 2 with respect to such sales, and the Net Proceeds (as defined below) payable to the Company, with an
itemization of the deductions made by the Sales Agent (as set forth in Section 5(a)) from the gross proceeds that it receives
from such sales. Subject to the terms of the Placement Notice, the Sales Agent may sell Placement Shares by any method permitted by law
deemed to be an “at the market” offering as defined in Rule 415 under the Securities Act, including without limitation sales
made directly on the Exchange, on any other existing trading market for the Common Stock or to or through a market maker. Subject to
the terms of a Placement Notice, the Sales Agent may also sell Placement Shares by any other method permitted by law, including but not
limited to in negotiated transactions with the Company’s prior written consent. The Company acknowledges and agrees that (i) there
can be no assurance that the Sales Agent will be successful in selling Placement Shares, (ii) the Sales Agent will incur no liability
or obligation to the Company or any other person or entity if it does not sell Placement Shares for any reason other than a failure by
the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law
and regulations to sell such Placement Shares as required under this Agreement and (iii) the Sales Agent shall be under no obligation
to purchase Placement Shares on a principal basis pursuant to this Agreement, except as otherwise agreed by the Sales Agent and the Company
in writing and expressly set forth in a Placement Notice. For the purposes hereof, “Trading Day” means any
day on which the Company’s Common Stock is purchased and sold on the principal market on which the Common Stock is listed or quoted.
(b)
Under no circumstances shall the Company cause or request the offer or sale of any Placement Shares if, after giving effect to the sale
of such Placement Shares, the aggregate number or gross sales proceeds of Placement Shares sold pursuant to this Agreement would exceed
the lesser of: (i) the number or dollar amount of shares of Common Stock registered pursuant to the Registration Statement pursuant to
which the offering hereunder is being made, (ii) the number of authorized but unissued and unreserved shares of Common Stock, (iii) the
number or dollar amount of shares of Common Stock permitted to be offered and sold by the Company under Form S-3 (including General Instruction
I.B.6 of Form S-3, if and for so long as applicable), (iv) the number or dollar amount of shares of Common Stock authorized from time
to time to be issued and sold under this Agreement by the Company’s board of directors, a duly authorized committee thereof or
a duly authorized executive committee, and notified to the Sales Agent in writing, or (v) the number or dollar amount of shares of Common
Stock for which the Company has filed the ATM Prospectus or other prospectus supplement specifically relating to the offering of the
Placement Shares pursuant to this Agreement. Under no circumstances shall the Company cause or request the offer or sale of any Placement
Shares pursuant to this Agreement at a price lower than the minimum price authorized from time to time by the Company’s board of
directors, a duly authorized committee thereof or a duly authorized executive committee, and notified to the Sales Agent in writing.
Notwithstanding anything to the contrary contained herein, the parties hereto acknowledge and agree that compliance with the limitations
set forth in this Section 3(b) on the number or dollar amount of Placement Shares that may be issued and sold under this Agreement
from time to time shall be the sole responsibility of the Company, and that the Sales Agent shall have no obligation in connection with
such compliance.
(c)
During the term of this Agreement, neither the Sales Agent nor any of its affiliates or subsidiaries shall engage in (i) any short sale
of any security of the Company or (ii) any sale of any security of the Company that the Sales Agent does not own or any sale that is
consummated by the delivery of a security of the Company borrowed by, or for the account of, the Sales Agent. During the term of this
Agreement and notwithstanding anything to the contrary herein, the Sales Agent agrees that in no event will the Sales Agent or its affiliates
engage in any market making, bidding, stabilization or other trading activity with regard to the Common Stock or related derivative securities
if such activity would be prohibited under Regulation M or other anti-manipulation rules under the Exchange Act.
4.
Suspension of Sales.
(a)
The Company or the Sales Agent may, upon notice to the other party in writing (including by e-mail correspondence to each of the individuals
of the other party set forth on Schedule 2, if receipt of such correspondence is actually acknowledged by any of the individuals
to whom the notice is sent, other than via auto-reply) or by telephone (confirmed immediately by verifiable facsimile transmission or
e-mail correspondence to each of the individuals of the other party set forth on Schedule 2), suspend any sale of Placement
Shares for a period of time (a “Suspension Period”); provided, however, that such suspension
shall not affect or impair either party’s obligations with respect to any Placement Shares sold hereunder prior to the receipt
of such notice. While a Suspension is in effect, any obligation under Sections 7(m), 7(n), and 7(o) with respect
to the delivery of certificates, opinions, or comfort letters to the Sales Agent, shall be waived. Each of the parties hereto agrees
that no such notice under this Section 4 shall be effective against the other unless it is made to one of the individuals named
on Schedule 2 hereto, as such schedule may be amended from time to time. During a Suspension Period, the Company shall
not issue any Placement Notices and the Sales Agent shall not sell any Placement Shares hereunder. The party that issued a suspension
notice shall notify the other party in writing of the Trading Day on which the Suspension Period shall expire not later than twenty-four
(24) hours prior to such Trading Day.
(b)
Notwithstanding any other provision of this Agreement, during any period in which the Company is in possession of material non-public
information, the Company and the Sales Agent agree that (i) no sale of Placement Shares will take place, (ii) the Company shall not request
the sale of any Placement Shares, and (iii) the Sales Agent shall not be obligated to sell or offer to sell any Placement Shares.
5.
Settlement.
(a)
Settlement of Placement Shares. Unless otherwise specified in the applicable Placement Notice, settlement for sales of Placement
Shares will occur on the first (1st) Trading Day (or such earlier day as is industry practice for regular-way trading) following
the respective Point of Sale (as defined below) (each, a “Settlement Date”). The Sales Agent shall notify the
Company of each sale of Placement Shares on the date of such sale. The amount of proceeds to be delivered to the Company on a Settlement
Date against receipt of the Placement Shares sold (the “Net Proceeds”) will be equal to the aggregate sales
price received by the Sales Agent at which such Placement Shares were sold, after deduction for (i) the Sales Agent’s discount,
commission or other compensation for such sales payable by the Company pursuant to Section 2 hereof, and (ii) any transaction
fees, trading expenses or execution fees imposed by any clearing organization or any governmental or self-regulatory organization in
respect of such sales.
(b)
Delivery of Placement Shares. On or before each Settlement Date, the Company will, or will cause its transfer agent to, electronically
transfer the Placement Shares being sold by crediting the Sales Agent’s or its designee’s account (provided the Sales Agent
shall have given the Company written notice of such designee and such designee’s account information at least one Trading Day prior
to the Settlement Date) at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”)
or by such other means of delivery as may be mutually agreed upon by the parties hereto which in all cases shall be freely tradable,
transferable, registered shares in good deliverable form. On each Settlement Date, the Sales Agent will deliver the related Net Proceeds
in same day funds to an account designated by the Company on, or prior to, the Settlement Date. The Sales Agent will be responsible for
providing DWAC instructions for delivery or by other means with regard to the Placement Shares sold. The Company agrees that if the Company,
or its transfer agent (if applicable), defaults in its obligation to deliver duly authorized Placement Shares on a Settlement Date, through
no fault of the Sales Agent, the Company agrees that in addition to and in no way limiting the rights and obligations set forth in Section
9(a) (Indemnification and Contribution) hereto, the Company will (i) hold the Sales Agent, its directors, officers, members, partners,
employees and agents of the Sales Agent, each broker dealer affiliate of the Sales Agent, and each person, if any, who (A) controls the
Sales Agent within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act or (B) is controlled by or is under
common control with the Sales Agent (each, a “Sales Agent Affiliate”), and the Sales Agent’s clearing
organization, harmless against any loss, claim, damage, or reasonable and documented expense (including reasonable legal fees and expenses),
as incurred, arising out of or in connection with such default by the Company or its transfer agent (if applicable) and (ii) pay to the
Sales Agent (without duplication) any commission, discount, or other compensation to which it would otherwise have been entitled absent
such default.
6.
Representations and Warranties of the Company. Except as disclosed in the SEC Reports (as defined below), the Company represents
and warrants to, and agrees with, the Sales Agent that as of each Applicable Time (as defined in Section 22(a)), unless such representation,
warranty or agreement specifies a different time or times:
(a).
Compliance with Registration Requirements. The Registration Statement was declared effective by the Commission under the Securities
Act on September 10, 2024 and the Company is and continues to be eligible to use such Form S-3. The Company has complied to the Commission’s
satisfaction with all requests of the Commission for additional or supplemental information related to the Registration Statement and
the Prospectus. No stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement is
in effect and no proceedings for such purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated
or threatened by the Commission. The Registration Statement and, assuming no act or omission on the part of the Sales Agent that would
make such statements untrue, the offer and sale of the Placement Shares as contemplated hereby meet the requirements of Rule 415 under
the Securities Act and comply in all material respects with said Rule. In the section entitled “Plan of Distribution” in
the ATM Prospectus, the Company has named Spartan Capital Securities, LLC as an agent that the Company has engaged in connection with
the transactions contemplated by this Agreement. The Company was not and is not an “ineligible issuer” as defined in Rule
405 under the Securities Act.
(b).
No Misstatement or Omission. The Registration Statement and any post-effective amendment thereto, at the time it became or becomes
effective, complied or will comply in all material respects with the Securities Act. The Prospectus, and any amendment or supplement
thereto, on the date of such Prospectus or amendment or supplement, complied or will comply in all material respects with the Securities
Act. The Registration Statement and any post-effective amendment thereto, at the time it became or becomes effective, did not and will
not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading. The Prospectus, as amended or supplemented, as of its date, did not and, as of each Point of Sale
and each Settlement Date, will not contain any untrue statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations and
warranties set forth in the two immediately preceding sentences do not apply to statements in or omissions from the Registration Statement
or any post-effective amendment thereto, or the Prospectus, or any amendments or supplements thereto, made in reliance upon and in conformity
with information relating to the Sales Agent furnished to the Company in writing by the Sales Agent expressly for use therein. “Point
of Sale” means, for a Placement, the time at which an acquiror of Placement Shares entered into a contract, binding upon
such acquiror, to acquire such Placement Shares.
(c).
Offering Materials Furnished to the Sales Agent. Copies of the Registration Statement, the Prospectus, and all amendments or supplements
thereto and all documents incorporated by reference therein that were filed with the Commission on or prior to the date of this Agreement,
have been delivered, or are publicly available through EDGAR, to the Sales Agent. Each Prospectus delivered to the Sales Agent for use
in connection with the sale of the Placement Shares pursuant to this Agreement will be identical to the version of such Prospectus filed
with the Commission via EDGAR, except to the extent permitted by Regulation S-T.
(d).
Distribution of Offering Material By the Company. The Company has not distributed and will not distribute, prior to the completion
of the Sales Agent’s distribution of the Placement Shares, any offering material in connection with the offering and sale of the
Placement Shares other than the Prospectus or the Registration Statement.
(e).
The Sales Agreement. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid,
legal, and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as rights to indemnity
hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of creditors generally, and subject to general principles of equity.
The Company has full corporate power and authority to enter into this Agreement and to authorize, issue and sell the Placement Shares
as contemplated by this Agreement. This Agreement conforms in all material respects to the descriptions thereof in the Registration Statement
and the Prospectus.
(f).
Issuance and Authorization of the Placement Shares. The Placement Shares, when issued and paid for as contemplated herein, will
be validly issued, fully paid and nonassessable, will be issued in compliance with all applicable securities laws, and will be free and
clear of Liens, preemptive, registration or similar rights imposed by the Company, and will conform to the description of the Common
Stock contained in the Registration Statement and the Prospectus. The Company has reserved from its duly authorized capital stock the
maximum number of shares of Common Stock issuable pursuant to this Agreement. The issuance by the Company of the Placement Shares has
been registered under the Securities Act and the Exchange Act and all of the Placement Shares, when issued, will be freely transferable
and tradable by the purchasers thereof without restriction under the Securities Act (other than any restrictions arising solely from
an act or omission of such a purchaser). The Placement Shares are being issued pursuant to the Registration Statement and the Prospectus.
The “Plan of Distribution” section within the ATM Prospectus permits the issuance and sale of the Placement Shares as contemplated
by this Agreement. Upon receipt of the Placement Shares, the purchasers of such Placement Shares will have good and marketable title
to such Placement Shares and the Placement Shares will be freely tradable on the Exchange.
(g).
No Applicable Registration or Other Similar Rights. There are no persons with registration or other similar rights to have any
equity or debt securities registered for sale under the Registration Statement or included in the offering contemplated by this Agreement,
except for such rights as have been duly waived. No person has the right to act as an underwriter or as a financial advisor to the Company
in connection with the offer and sale of the Placement Shares hereunder, whether as a result of the filing or effectiveness of the Registration
Statement or the sale of the Placement Shares as contemplated hereby or otherwise.
(h).
Capitalization. The capitalization of the Company as of the date hereof is as set forth in the Registration Statement and the
Prospectus. Except for 250,000 shares of common stock recently issued to a consultant as a partial payment for services, the Company
has not issued any capital stock since its most recently filed periodic report under the Exchange Act, other than pursuant to the exercise
of employee stock options under the Company’s stock option plans, the issuance of shares of Common Stock to employees pursuant
to the Company’s employee stock purchase plans and pursuant to the conversion and/or exercise of Common Stock equivalents outstanding
as of the date of the most recently filed periodic report under the Exchange Act. No Person has any right of first refusal, preemptive
right, right of participation, or any similar right to participate in the transactions contemplated by this Agreement. Except as set
forth in the Registration Statement and the Prospectus, and as a result of the purchase and sale of the Placement Shares, there are no
outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities,
rights or obligations convertible into or exercisable or exchangeable for, or giving any person any right to subscribe for or acquire,
any shares of Common Stock, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may
become bound to issue additional shares of Common Stock or Common Stock equivalents. The issuance and sale of the Placement Shares will
not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of such
securities. There are no outstanding securities or instruments of the Company or any Subsidiary with any provision that adjusts the exercise,
conversion, exchange or reset price of such security or instrument upon an issuance of securities by the Company or any Subsidiary. There
are no outstanding securities or instruments of the Company or any Subsidiary that contain any redemption or similar provisions, and
there are no contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to
redeem a security of the Company or such Subsidiary. The Company does not have any share appreciation rights or “phantom share”
plans or agreements or any similar plan or agreement. All of the outstanding shares of the Company are duly authorized, validly issued,
fully paid and non-assessable, have been issued in compliance with all federal and state securities laws where applicable, and none of
such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. Except
for the Required Approvals (as defined below), no further approval or authorization of any stockholder, the Board of Directors or others
is required for the issuance and sale of the Placement Shares. Except as set forth in the Registration Statement and the Prospectus,
there are no stockholders agreements, voting agreements or other similar agreements with respect to the Company’s share capital
to which the Company is a party or, to the knowledge of the Company, between or among any of the Company’s stockholders.
(i).
No Material Adverse Change. Except as otherwise disclosed in the Prospectus, subsequent to the respective dates as of which information
is given in the Prospectus: (i) there has been no material adverse change in the business, properties, prospects, operations, condition
(financial or otherwise) or results of operations of the Company and its Subsidiaries (as defined below), taken as a whole (any such
change is called a “Material Adverse Change”), which, individually or in the aggregate, has had or would reasonably
be expected to result in a Material Adverse Change; (ii) the Company and its Subsidiaries (as defined below), considered as one entity,
have not incurred any material liability or obligation, indirect, direct or contingent, not in the ordinary course of business nor entered
into any material transaction or agreement not in the ordinary course of business; (iii) there has been no dividend or distribution of
any kind declared, paid or made by the Company; (iv) no executive officer or director of the Company has resigned from any position with
the Company; and (v) there has not been any Material Adverse Change in the Company’s long-term or short-term debt.
(j).
Independent Accountants. To the knowledge of the Company, Bush & Associates CPA LLP, whose report is filed with the Commission
and included or incorporated by reference in the Registration Statement and the Prospectus, is an independent registered public accounting
firm as required by the Securities Act and the Public Company Accounting Oversight Board. Bush & Associates CPA LLP has not, during
the periods covered by the financial statements included or incorporated by reference in the Registration Statement and the Prospectus,
provided to the Company any non-audit services, as such term is used in Section 10A(g) of the Exchange Act.
(k).
Financial Statements. The consolidated balance sheets of the Company as of October 31, 2022 and October 31, 2023, changes in stockholder
or member equity and statements of cash flows for the fiscal years then ended, and all the financial statements filed with the Commission
as a part of the Registration Statement and included in the Prospectus, together with the related notes and schedules, present fairly,
in all material respects, the consolidated financial position of the Company and its Subsidiaries (as defined below) as of and at the
dates indicated and the results of their operations and cash flows for the periods therein specified. Such financial statements and supporting
schedules have been prepared in conformity with U.S. generally accepted accounting principles (“GAAP”) applied
on a consistent basis throughout the periods involved, except as may be expressly stated in the related notes thereto, provided, that,
unaudited interim financial statements are subject to year-end audit adjustments that are not expected to be material in the aggregate
and do not contain all footnotes required by GAAP. No other financial statements or supporting schedules are required to be included
in or incorporated by reference in the Registration Statement or the Prospectus.
(l).
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 or incorporated by reference in the Registration Statement or the Prospectus has been made or reaffirmed
by the Company without a reasonable basis or has been disclosed by the Company other than in good faith.
(m).
Statistical and Marketing-Related Data. The statistical and market-related data included or incorporated by reference in each
of the Registration Statement or the Prospectus are based on or derived from sources that the Company reasonably believes to be reliable
and accurate or represent the Company’s good faith estimates that are made on the basis of data derived from such sources.
(n).
XBRL. The interactive data in eXtensible Business Reporting Language (“XBRL”) included or incorporated
by reference in the Registration Statement fairly presents the information called for in all material respects and has been prepared
in accordance with the Commission’s rules and guidelines applicable thereto.
(o).
Incorporation and Good Standing of the Company and its Subsidiaries. The Company is a corporation duly incorporated and validly
existing under the laws of the State of Delaware. The Company has requisite corporate power to carry on its business as described in
the Registration Statement and the Prospectus. The Company is duly qualified to transact business and is in good standing in all jurisdictions
in which the conduct of its business requires such qualification; except where the failure to be so qualified or to be in good standing
would not result in a Material Adverse Change. The Company has no subsidiaries and does not own or control, directly or indirectly, any
corporation, association or other entity other than the subsidiaries (each a “Subsidiary,” and collectively
“Subsidiaries”) listed in Exhibit 21.1 to the Company’s Annual Report on Form 10-K for the most recently
ended fiscal year and other than (i) those subsidiaries not required to be listed on Exhibit 21.1 by Item 601 of Regulation S-K under
the Exchange Act, (ii) those subsidiaries formed since the last day of the most recently ended fiscal year, and (iii) as disclosed in
the Registration Statement and the Prospectus.
(p).
Capital Stock Matters. All issued and outstanding shares of Common Stock of the Company issued prior to the transactions contemplated
by this Agreement have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights
of rescission with respect thereto, and are not subject to personal liability by reason of being such holders; and none of such securities
were issued in violation of the preemptive rights of any holders of any security of the Company or similar contractual rights granted
by the Company. The Company owns, directly or indirectly, all of the capital shares or other equity interests of each Subsidiary, free
and clear of any liens (including but are not limited to a lien, charge, pledge, security interest, encumbrance, right of first refusal,
preemptive right or other restriction) (the “Liens”), except as set forth in the Registration Statement and
the Prospectus, and all of the issued and outstanding shares of capital stock of each Subsidiary are validly issued and are fully paid,
non-assessable and free of preemptive and similar rights to subscribe for or purchase securities. The authorized shares of Common Stock
conform in all material respects to all statements relating thereto contained in the Registration Statement and the Prospectus. The offers
and sales of the outstanding shares of Common Stock were at all relevant times either registered under the Securities Act and the applicable
state securities or “blue sky” laws or, based in part on the representations and warranties of the purchasers of such shares,
exempt from such registration requirements. The description of the Company’s stock option, stock bonus and other stock plans or
arrangements, and the options or other rights granted thereunder, as described in the Registration Statement and the Prospectus, accurately
and fairly present, in all material respects, the information required to be shown with respect to such plans, arrangements, options
and rights.
(q).
Non-Contravention of Existing Instruments; No Further Authorizations or Approvals Required. The Company’s execution, delivery
and performance of this Agreement and consummation of the transactions contemplated hereby or by the Registration Statement and the Prospectus
(including the issuance and sale of the Placement Shares and the use of the proceeds from the sale of the Placement Shares as described
in the Prospectus under the caption “Use of Proceeds”) will not (A) result in a material breach or violation of any of the
terms and provisions of, or constitute a default under, any law, order, judgment, injunction, rule, regulation, decree or other restriction
of any court or governmental authority to which the Company or any Subsidiary is subject (including, without limitation, those promulgated
by the Food and Drug Administration of the U.S. Department of Health and Human Services (the “FDA”) or by any
foreign, federal, state or local regulatory authority performing functions similar to those performed by the FDA), or by which any property
or asset of the Company or any Subsidiary is bound or affected, (B) conflict with, result in any violation or breach of, or constitute
a default (or an event that with notice or lapse of time or both would become a default) under, or result in the creation of any Lien
upon any of the properties or assets of the Company or any Subsidiary, or give to others any right of termination, amendment, acceleration
or cancellation (with or without notice, lapse of time or both) (a “Default Acceleration Event”) of, any agreement,
lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (“Contract”) or obligation
or other understanding to which the Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary
is bound or affected, except to the extent that such conflict, default, or Default Acceleration Event is not reasonably likely to result
in a Material Adverse Change, or (C) result in a breach or violation of any of the terms and provisions of, or constitute a default under,
the Company’s or any Subsidiary’s memorandum of association, articles of association, articles of incorporation (as the same
may be amended or restated from time to time), bylaws (as the same may be amended or restated from time to time), operating agreement,
or other organizational or charter documents. Except as set forth in the Registration Statement and the Prospectus, neither the Company
nor any of its Subsidiaries is in violation, breach or default under its articles of incorporation (as the same may be amended or restated
from time to time), bylaws (as the same may be amended or restated from time to time) or other equivalent organizational or governing
documents. Neither the Company nor any its Subsidiaries nor, to its knowledge, any other party is in violation, breach or default of
any Contract that has resulted in or could reasonably be expected to result in a Material Adverse Change. Each approval, consent, order,
authorization, designation, declaration, notice or filing by or with any court or other federal, state, local regulatory, administrative
or other governmental body necessary in connection with the execution and delivery by the Company of this Agreement and the performance
of the Company of the transactions herein contemplated has been obtained or made and is in full force and effect (collectively, the “Required
Approvals”), except (i) with respect to any Applicable Time at which the Sales Agent would not be able to rely on Rule
5110(b)(7)(C)(i) of the Financial Industry Regulatory Authority, Inc. (“FINRA”), such additional steps as may
be required by FINRA, (ii) filings with the Commission required under the Securities Act or the Exchange Act, or filings or notice with
the Exchange pursuant to the rules and regulations of the Exchange, in each case that are contemplated by this Agreement to be made after
the date of this Agreement, and (iii) such additional steps as may be necessary to qualify the Common Stock for sale by the Sales Agent
under state securities or Blue Sky laws.
(r).
No Material Actions, Litigations or Proceedings. There is no action, suit, proceeding, inquiry, arbitration, investigation, litigation
or governmental proceeding pending or, to the bodies (it being understood that the interaction between the Company and the FDA and such
comparable governmental bodies relating to the clinical development and product approval process shall not be deemed proceedings for
purposes of this representation), which is required to be disclosed and has not been disclosed in the Registration Statement or the Prospectus,
except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Change.
(s).
Labor Disputes. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees
of the Company, which could reasonably be expected to result in a Material Adverse Change. None of the Company’s or its Subsidiaries’
employees is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary, and neither
the Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries believe
that their relationships with their employees are good. To the knowledge of the Company, no executive officer of the Company or any Subsidiary,
is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary
information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third
party, and the continued employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability
with respect to any of the foregoing matters. The Company and its Subsidiaries are in compliance with all applicable U.S. federal, state,
local and foreign laws and regulations relating to employment and employment practices, terms and conditions of employment and wages
and hours, except where the failure to be in compliance could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Change.
(t).
Compliance with Certain Applicable Laws. The Company and its Subsidiaries: (A) are and at all times have been in compliance with
all statutes, rules, or regulations applicable to the ownership, testing, development, manufacture, packaging, processing, use, distribution,
marketing, labeling, promotion, sale, offer for sale, storage, import, export or disposal of any product manufactured or distributed
by the Company (“Applicable Laws”), except as could not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Change; (B) have not received any warning letter, untitled letter or other correspondence or notice from any
governmental authority alleging or asserting noncompliance with any Applicable Laws or any licenses, certificates, approvals, clearances,
authorizations, permits and supplements or amendments thereto required by any such Applicable Laws (“Authorizations”);
(C) possess all material Authorizations and such Authorizations are valid and in full force and effect and are not in material violation
of any term of any such Authorizations; (D) have not received notice of any claim, action, suit, proceeding, hearing, enforcement, investigation,
arbitration or other action from any governmental authority or third party alleging that any product operation or activity is in violation
of any Applicable Laws or Authorizations and has no knowledge that any such governmental authority or third party is considering any
such claim, litigation, arbitration, action, suit, investigation or proceeding; (E) have not received notice that any governmental authority
has taken, is taking or intends to take action to limit, suspend, modify or revoke any Authorizations and has no knowledge that any such
governmental authority is considering such action; and (F) have filed, obtained, maintained or submitted all material reports, documents,
forms, notices, applications, records, claims, submissions and supplements or amendments as required by any Applicable Laws or Authorizations
and that all such reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments were complete
and correct on the date filed (or were corrected or supplemented by a subsequent submission).
(u).
Tax Law Compliance. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result
in a Material Adverse Change, the Company and its Subsidiaries each (i) has made or filed all federal, state and local income and all
foreign tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has paid all taxes and other
governmental assessments and charges, fines or penalties that are material in amount, shown or determined to be due on such returns,
reports and declarations and (iii) has set aside on its financial statements provision reasonably adequate for the payment of all material
tax liability of which has not been finally determined and all material taxes for periods subsequent to the periods to which such returns,
reports or declarations apply. There are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction,
and the officers of the Company or of any Subsidiary know of no basis for any such claim. The term “taxes”
mean all federal, state, local, foreign, and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise,
profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property,
windfall profits, customs, duties or other taxes, fees, assessments, or charges of any kind whatever, together with any interest and
any penalties, additions to tax, or additional amounts with respect thereto. The term “returns” means all returns,
declarations, reports, statements, and other documents required to be filed in respect to taxes.
(v).
Company Not an “Investment Company”. The Company is not, and will not be, either after receipt of payment for the
Placement Shares or after the application of the proceeds therefrom as described under “Use of Proceeds” in the Registration
Statement or the Prospectus, required to register as an “investment company” under the Investment Company Act of 1940, as
amended (the “Investment Company Act”).
(w).
Insurance. The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses
and risks and in such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged, including,
but not limited to, directors and officers insurance coverage in an amount deemed commercially reasonable. Neither the Company nor any
Subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be necessary to continue its business without a significant increase in cost.
(x).
Regulation M Compliance. The Company has not taken, directly or indirectly (without giving any effect to the activities of the
Sales Agent), any action designed to or that might cause or result in stabilization or manipulation of the price of the Common Stock
or of any “reference security” (as defined in Rule 100 of Regulation M under the Exchange Act (“Regulation M”))
with respect to the Common Stock, whether to facilitate the sale or resale of the Placement Shares or otherwise, and has taken no action
which would directly or indirectly violate Regulation M.
(y).
Related Party Transactions. Except as set forth in the Registration Statement and the Prospectus, none of the officers or directors
of the Company or any Subsidiary and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently
a party to any transaction with the Company or any Subsidiary (other than for services as employees, officers and directors), including
any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal
property to or from, providing for the borrowing of money from or lending of money to or otherwise requiring payments to or from any
officer, director or such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such employee
has a substantial interest or is an officer, director, trustee, shareholder, member or partner, in each case in excess of $120,000 other
than for (i) payment of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company
or a Subsidiary and (iii) other employee benefits, including share option agreements under any share option plan of the Company.
(z).
Exchange Act Compliance. The documents incorporated or deemed to be incorporated by reference in the Registration Statement, the
Prospectus or any amendment or supplement thereto, at the time they were or hereafter are filed with the Commission under the Exchange
Act, complied and will comply in all material respects with the requirements of the Exchange Act, and, when read together with the other
information in the Prospectus, at each Point of Sale and each Settlement Date, 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 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. The Company has filed all
reports, schedules, forms, statements and other documents required to be filed by the Company under the Securities Act and the Exchange
Act, including pursuant to Section 13(a) or 15(d) thereof, for the one year preceding the date hereof (or such shorter period as the
Company was required by law or regulation to file such materials) (the foregoing materials, including the exhibits thereto and documents
incorporated by reference therein, together with the Registration Statement and the Prospectus, being collectively referred to herein
as the “SEC Reports”) on a timely basis or has received a valid extension of such time of filing and has filed
any such SEC Reports prior to the expiration of any such extension. As of their respective dates, the SEC Reports complied in all material
respects with the requirements of the Securities Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained
any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not misleading. The Company has never been an issuer
subject to Rule 144(i) under the Securities Act. The financial statements of the Company included in the SEC Reports comply in all material
respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at
the time of filing. Such financial statements have been prepared in accordance with GAAP, except as may be otherwise specified in such
financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP,
and fairly present in all material respects the financial position of the Company and its consolidated Subsidiaries as of and for the
dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements,
to normal, immaterial, year-end audit adjustments.
(aa).
Conformity of Issuer Free Writing Prospectus. Each Issuer Free Writing Prospectus conformed or will conform in all material respects
to the requirements of the Securities Act on the date of first use, and the Company has complied or will comply with any filing requirements
applicable to such Issuer Free Writing Prospectus pursuant to the Securities Act. Each Issuer Free Writing Prospectus, as of its issue
date and at all subsequent times through the completion of the public offer and sale of the Placement Shares, did not, does not and will
not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement
or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified. The Company has
not made any offer relating to the Placement Shares that would constitute an Issuer Free Writing Prospectus without the prior written
consent of the Sales Agent. The Company has retained in accordance with the Securities Act all Issuer Free Writing Prospectuses that
were not required to be filed pursuant to the Securities Act.
(bb).
Compliance with Environmental Laws. The Company and its Subsidiaries (i) are in compliance with all federal, state, local and
foreign laws relating to pollution or protection of human health or the environment (including ambient air, surface water, groundwater,
land surface or subsurface strata), including laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants,
contaminants, or toxic or hazardous substances or wastes (collectively, “Hazardous Materials”) into the environment,
or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous
Materials, as well as all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments, licenses, notices or notice
letters, orders, permits, plans or regulations, issued, entered, promulgated or approved thereunder (“Environmental Laws”);
(ii) have received all permits licenses or other approvals required of them under applicable Environmental Laws to conduct their respective
businesses; and (iii) are in compliance with all terms and conditions of any such permit, license or approval where in each clause (i),
(ii) and (iii), the failure to so comply could be reasonably expected to have, individually or in the aggregate, a Material Adverse Change.
(cc).
Intellectual Property. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications, trademarks,
trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property rights
and similar rights necessary or required for use in connection with their respective businesses as described in the Registration Statement
and the Prospectus and which the failure to so have could have a Material Adverse Change (collectively, the “Intellectual
Property Rights”). None of, and neither the Company nor any Subsidiary has received a notice (written or otherwise) that
any of, the Intellectual Property Rights has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned,
within two (2) years from the date of this Agreement except as would not reasonably be expected to have a Material Adverse Change. Neither
the Company nor any Subsidiary has received, since the date of the latest audited financial statements included within the Registration
Statement or the Prospectus, a written notice of a claim or otherwise has any knowledge that the Intellectual Property Rights violate
or infringe upon the rights of any Person, except as could not have or reasonably be expected to not have a Material Adverse Change.
To the actual knowledge of the Company, all such Intellectual Property Rights are enforceable and there is no existing infringement by
another Person of any of the Intellectual Property Rights. The Company and its Subsidiaries have taken reasonable security measures to
protect the secrecy, confidentiality and value of all of their intellectual properties, except where failure to do so could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Change.
(dd).
Brokers. Neither the Company nor any of its Subsidiaries is a party to any contract, agreement or understanding with any person
(other than as contemplated by this Agreement) that would give rise to a valid claim against the Company or any of its Subsidiaries or
the Sales Agent for a brokerage commission, finder’s fee or like payment in connection with the offering and sale of the Placement
Shares by the Sales Agent under this Agreement.
(ee).
Solvency. Based on the consolidated financial condition of the Company, (i) the fair saleable value of the Company’s assets
exceeds the amount that will be required to be paid on or in respect of the Company’s existing debts and other liabilities (including
known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably small capital to carry on
its business as now conducted and as proposed to be conducted including its capital needs taking into account the particular capital
requirements of the business conducted by the Company, consolidated and projected capital requirements and capital availability thereof,
and (iii) the current cash flow of the Company, together with the proceeds the Company would receive, were it to liquidate all of its
assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in respect of its liabilities
when such amounts are required to be paid. The Company does not intend to incur debts beyond its ability to pay such debts as they mature
(taking into account the timing and amounts of cash to be payable on or in respect of its debt). The Company has no knowledge of any
facts or circumstances which lead it to believe that it will file for reorganization or liquidation under the bankruptcy or reorganization
laws of any jurisdiction within one year from the date of this Agreement. As of the date hereof, neither the Company nor any Subsidiary
has any secured or unsecured Indebtedness, except as set forth in the Registration Statement and the Prospectus. For the purposes of
this Agreement, “Indebtedness” means (x) any liabilities for borrowed money or amounts owed in excess of $50,000
(other than trade accounts payable incurred in the ordinary course of business), (y) all guaranties, endorsements and other contingent
obligations in respect of indebtedness of others, whether or not the same are or should be reflected in the Company’s consolidated
balance sheet (or the notes thereto), except guaranties by endorsement of negotiable instruments for deposit or collection or similar
transactions in the ordinary course of business; and (z) the present value of any lease payments in excess of $50,000 due under leases
required to be capitalized in accordance with GAAP. Neither the Company nor any Subsidiary is in default with respect to any Indebtedness.
(ff).
No Reliance. The Company has not relied upon the Sales Agent or legal counsel for the Sales Agent for any legal, tax or accounting
advice in connection with the offering and sale of the Placement Shares.
(gg).
Broker-Dealer Status. Neither the Company nor any of its related entities (i) is required to register as a “broker”
or “dealer” in accordance with the provisions of the Exchange Act or (ii) directly or indirectly through one or more intermediaries,
controls or is a “person associated with a member” or “associated person of a member” (within the meaning of
Article I of the NASD Manual administered by FINRA). To the Company’s knowledge, there are no affiliations or associations between
any member of FINRA and any of the Company’s officers, directors or 10% or greater security holders, except as set forth in the
Registration Statement.
(hh).
S-3 Eligibility. (i) At the time of filing the Registration Statement and (ii) at the time of the most recent amendment thereto
for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated
report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), the Company met the then applicable requirements
for use of Form S-3 under the Securities Act, including compliance with General Instruction I.B.1 or General Instruction I.B.6 of Form
S-3, if and for so long as applicable. The Company is not a shell company (as defined in Rule 405 under the Securities Act) and has not
been a shell company for at least 12 calendar months previously and if it has been a shell company at any time previously, has filed
current Form 10 information (as defined in General Instruction I.B.6 of Form S-3) with the Commission at least 12 calendar months previously
reflecting its status as an entity that is not a shell company.
(ii).
FINRA Matters. All of the information provided to the Sales Agent or to counsel for the Sales Agent by the Company, its counsel,
its officers and directors and, to the Company’s knowledge, the holders of any securities (debt or equity) or options to acquire
any securities of the Company in connection with the offering of the Placement Shares is true, complete, correct and compliant with FINRA’s
rules in all material respects and any letters, filings or other supplemental information provided to FINRA pursuant to FINRA Rules or
NASD Conduct Rules is true, complete and correct in all material respects. Except as disclosed in the Registration Statement and the
Prospectus, there is no (i) officer or director of the Company, (ii) beneficial owner of 10% or more of any class of the Company’s
securities or (iii) to the Company’s knowledge, beneficial owner of the Company’s unregistered equity securities that were
acquired during the 180-day period immediately preceding the date of this Agreement that is an affiliate or associated person of a FINRA
member participating in the offer, issuance and sale of the Placement Shares as contemplated by this Agreement and the Registration Statement
and the Prospectus (as determined in accordance with the rules and regulations of FINRA).
(jj).
Compliance with Orders. Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred
that has not been waived that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under),
nor has the Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture,
loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound
(whether or not such default or violation has been waived), (ii) is in violation of any judgment, decree or order of any court, arbitrator
or other governmental authority or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any governmental
authority, including without limitation all foreign, federal, state and local laws relating to taxes, environmental protection, occupational
health and safety, product quality and safety and employment and labor matters, except in each case of (i), (ii) and (iii) as could not
reasonably be expected to result in a Material Adverse Change.
(kk).
Sarbanes-Oxley; Internal Accounting Controls. The Company and the Subsidiaries are in material compliance with any and all applicable
requirements of the Sarbanes-Oxley Act of 2002 that are effective as of the date hereof, and any and all applicable rules and regulations
promulgated by the Commission thereunder that are effective as of the date hereof. Except as disclosed in the Registration Statement
and the Prospectus, the Company and the Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable
assurance that: (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions
are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability,
(iii) access to assets is permitted only in accordance with management’s general or specific authorization, (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 (v) the interactive data in XBRL included or incorporated by reference in the Registration Statement and the Prospectus fairly present
the information called for in all material respects and are prepared in accordance with the Commission’s rules and guidelines applicable
thereto. The Company and the Subsidiaries have established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e)
and 15d-15(e)) for the Company and the Subsidiaries and designed such disclosure controls and procedures to ensure that information required
to be disclosed by the Company in the reports it files or submits under the Exchange Act is recorded, processed, summarized and reported,
within the time periods specified in the Commission’s rules and forms. The Company’s certifying officers have evaluated the
effectiveness of the disclosure controls and procedures of the Company and the Subsidiaries as of the end of the period covered by the
most recently filed Form 10-K under the Exchange Act (such date, the “Evaluation Date”). The Company presented
in its most recently filed Form 10-K under the Exchange Act the conclusions of the certifying officers about the effectiveness of the
disclosure controls and procedures based on their evaluations as of the Evaluation Date. Except as set forth in the Registration Statement
and the Prospectus, since the Evaluation Date, there have been no changes in the internal control over financial reporting (as such term
is defined in the Exchange Act) that have materially affected, or is reasonably likely to materially affect, the internal control over
financial reporting of the Company and its Subsidiaries.
(ll).
ERISA. The Company, its Subsidiaries and any “employee benefit plan” (as defined under the Employee Retirement Income
Security Act of 1974, as amended, and the regulations and published interpretations thereunder (collectively, “ERISA”))
established or maintained by the Company, its Subsidiaries or any of their “ERISA Affiliates” (as defined below) are in compliance
in all material respects with ERISA. “ERISA Affiliate” means, with respect to the Company and each of its Subsidiaries,
any member of any group of organizations described in Sections 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended,
and the regulations and published interpretations thereunder (the “Code”) of which the Company or any of its
Subsidiaries is a member. No “reportable event” (as defined under ERISA) has occurred or is reasonably expected to occur
with respect to any “employee benefit plan” established or maintained by the Company, or any of its Subsidiaries or any of
their ERISA Affiliates. No “employee benefit plan” established or maintained by the Company, any of its Subsidiaries or any
of their ERISA Affiliates, if such “employee benefit plan” were terminated, would have any “amount of unfunded benefit
liabilities” (as defined under ERISA). Neither the Company nor any of its Subsidiaries nor any of their ERISA Affiliates has incurred
or reasonably expects to incur any material liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from,
any “employee benefit plan” or (ii) Sections 412, 4971, 4975 or 4980B of the Code. Each “employee benefit plan”
established or maintained by the Company, any of its Subsidiaries or any of their ERISA Affiliates that is intended to be qualified under
Section 401(a) of the Code is so qualified and, to the knowledge of the Company, nothing has occurred, whether by action or failure to
act, which would cause the loss of such qualification.
(mm).
Contracts and Agreements. The agreements and documents described in the Registration Statement and the Prospectus conform in all
material respects to the descriptions thereof contained therein and there are no agreements or other documents required by the Securities
Act to be described in the Registration Statement and the Prospectus or to be filed with the Commission as exhibits to the Registration
Statement, that have not been so described or filed. Each agreement or other instrument (however characterized or described) to which
the Company or any of its Subsidiaries is a party or by which it is or may be bound or affected and (i) that is referred to in the Registration
Statement and the Prospectus, or (ii) is material to the Company’s or its Subsidiaries’ business, has been duly authorized
and validly executed by the Company, is in full force and effect in all material respects and is enforceable against the Company or any
of its Subsidiaries and, to the Company’s knowledge, the other parties thereto, in accordance with its terms, except (x) as such
enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally,
(y) as enforceability of any indemnification or contribution provision may be limited under the federal and state securities laws, and
(z) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses
and to the discretion of the court before which any proceeding therefor may be brought. Except as disclosed in the Registration Statement
and the Prospectus, none of such agreements or instruments has been assigned by the Company or its Subsidiaries, and neither the Company,
its Subsidiaries nor, to the Company’s knowledge, any other party is in default thereunder and, to the Company’s knowledge,
no event has occurred that, with the lapse of time or the giving of notice, or both, would constitute a default thereunder. To the Company’s
knowledge, performance by the Company or any of its Subsidiaries of the material provisions of such agreements or instruments will not
result in a violation of any existing applicable law, rule, regulation, judgment, order or decree of any governmental agency or court,
domestic or foreign, having jurisdiction over the Company, its Subsidiaries or any of their assets or businesses (each, a “Governmental
Entity”), including, without limitation, those relating to environmental laws and regulations.
(nn).
Title to Properties. The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned
by them and good and marketable title in all personal property owned by them that is material to the business of the Company and the
Subsidiaries, in each case free and clear of all Liens, except for (i) Liens as do not materially affect the value of such property and
do not materially interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries and (ii) Liens
for the payment of federal, state or other taxes, for which appropriate reserves have been made therefor in accordance with GAAP and,
the payment of which is neither delinquent nor subject to penalties. Any real property and facilities held under lease by the Company
and the Subsidiaries are held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries are
in compliance in all material respects.
(oo).
No Unlawful Contributions or Other Payments. No payments or inducements have been made or given, directly or indirectly, to any
federal or local official or candidate for, any federal or state office in the United States or foreign offices by the Company, any of
its Subsidiaries or any of their officers or directors, or, to the knowledge of the Company, by any of its employees or agents or any
other person in connection with any opportunity, contract, permit, certificate, consent, order, approval, waiver or other authorization
relating to the business of the Company or any of its Subsidiaries, except for such payments or inducements as were lawful under applicable
laws, rules and regulations. Neither the Company, any of its Subsidiaries, nor, to the knowledge of the Company, any director, officer,
agent, employee or other person associated with or acting on behalf of the Company or any of its Subsidiaries, (i) has used any corporate
funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct
or indirect unlawful payment to any government official or employee from corporate funds; or (iii) made any bribe, unlawful rebate, payoff,
influence payment, kickback or other unlawful payment in connection with the business of the Company.
(pp).
Foreign Corrupt Practices Act. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary,
any agent or other person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful
payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate
funds, (iii) failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any person acting on its behalf
of which the Company is aware) which is in violation of law, or (iv) violated in any material respect any provision of the Foreign Corrupt
Practices Act of 1977, as amended, and the rules and regulations thereunder (collectively, the “FCPA”).
(qq).
Money Laundering Laws. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance
with applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, applicable money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money Laundering
Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator
involving the Company or any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge of the Company or any
Subsidiary, threatened.
(rr).
Office of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company’s knowledge, any director,
officer, agent, employee or affiliate of the Company or any Subsidiary is currently subject to any U.S. sanctions administered by the
Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”).
(ss).
Exchange Listing and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and
is currently listed on the Exchange under the trading symbol “TPET”. Except as disclosed in the Registration Statement and
the Prospectus, there is no action pending by the Company or, to the Company’s knowledge, the Exchange to delist the Common Stock
from the Exchange, nor has the Company received any notification that the Exchange is currently contemplating terminating such listing,
except as otherwise disclosed in the Registration Statement and Prospectus. The Company has no intention to delist the Common Stock from
the Exchange or to deregister the Common Stock under the Exchange Act, in either case, at any time during the period commencing on the
date of this Agreement through and including the 90th calendar day after the termination of this Agreement. The Company has filed with
the Exchange a Listing of Additional Shares Notification Form for the offering of the Placement Shares as contemplated in this Agreement.
The issuance and sale of the Placement Shares under this Agreement does not contravene the rules and regulations of the Exchange.
(tt).
Margin Rules. The Company owns no “margin securities” as that term is defined in Regulation U of the Board of Governors
of the Federal Reserve System (the “Federal Reserve Board”), and none of the proceeds from the issuance, sale
and delivery of the Placement Shares as contemplated by this Agreement and as described in the Registration Statement and the Prospectus
will be used, directly or indirectly, for the purpose of purchasing or carrying any margin security, for the purpose of reducing or retiring
any indebtedness which was originally incurred to purchase or carry any margin security or for any other purpose which might cause any
of the shares of Common Stock to be considered a “purpose credit” within the meanings of Regulation T, U or X of the Federal
Reserve Board.
(uu).
Underwriter Agreements. The Company is not a party to any agreement with an agent or underwriter for any other “at-the-market”
or continuous equity transaction other than this Agreement.
(vv).
Board of Directors. The qualifications of the persons serving as board members of the Company and the overall composition of the
Company’s Board of Directors comply with the applicable requirements of the Exchange Act and the Sarbanes-Oxley Act and the listing
rules of the Exchange applicable to the Company. At least one member of the Audit Committee of the Board of Directors of the Company
qualifies as an “audit committee financial expert,” as such term is defined under Regulation S-K and the listing rules of
the Exchange. In addition, at least a majority of the persons serving on the Board of Directors of the Company qualify as “independent,”
as defined under the listing rules of the Exchange.
(ww).
No Integration. Neither the Company, nor any of its affiliates, nor any person acting on its or their behalf has, directly or
indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause
the offer and sale of the Placement Shares hereunder to be integrated with prior offerings by the Company for purposes of the Securities
Act that would require the registration of any such securities under the Securities Act.
(xx).
Material Changes; Undisclosed Events, Liabilities or Developments. Except as set forth in the Registration Statement and the Prospectus,
since the date of the latest financial statements filed by the Company with the Commission, (i) there has been no event, occurrence or
development that has had or that could reasonably be expected to result in a Material Adverse Change, (ii) the Company has not incurred
any liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary course of business
consistent with past practice and strategic acquisitions and (B) liabilities not required to be reflected in the Company’s financial
statements pursuant to GAAP or disclosed in filings made with the Commission, (iii) the Company has not altered its method of accounting,
(iv) the Company has not declared or made any dividend or distribution of cash or other property to its stockholders or purchased, redeemed
or made any agreements to purchase or redeem any of its shares, (v) the Company has not issued any equity securities to any officer,
director or affiliate, except pursuant to existing Company equity incentive plans, (vi) the Company has no liabilities or obligations,
absolute or contingent (individually or in the aggregate) in excess of $250,000 individually, or in the aggregate, (vii) the Company
has no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing
Indebtedness of the Company or by which the Company is or may become bound; (viii) the Company is not a party to any contract, agreement
or instrument, the violation of which, or default under which, by the other party(ies) to such contract, agreement or instrument could
reasonably be expected to result in a Material Adverse Change; (ix) the Company has no financing statements securing obligations in any
amounts filed in connection with the Company; (x) the Company is not in violation of any term of, or in default under, any contract,
agreement or instrument relating to any Indebtedness, except where such violations and defaults would not result, individually or in
the aggregate, in a Material Adverse Change, and (xi) the Company is not a party to any contract, agreement or instrument relating to
any Indebtedness, the performance of which, in the judgment of the Company’s officers, has or is expected to have a Material Adverse
Change. The Company does not have pending before the Commission any request for confidential treatment of information. Except for the
issuance of the Placement Shares contemplated by this Agreement, no event, liability, fact, circumstance, occurrence or development has
occurred or exists with respect to the Company or its Subsidiaries or their respective businesses, prospects, properties, operations,
assets or financial condition that would be required to be disclosed by the Company under applicable securities laws at the time this
representation is made or deemed made that has not been publicly disclosed at least one (1) Trading Day prior to the date that this representation
is made.
(yy).
Books and Records. The minute books of the Company and each of its Subsidiaries have been made available to the Sales Agent and
counsel for the Sales Agent, and such books (i) contain a substantially complete summary of all meetings and material actions of the
board of directors (including each board committee) and stockholders of the Company (or analogous governing bodies and interest holders,
as applicable) and each of its Subsidiaries since the time of its respective incorporation or organization through the date of the latest
meeting and action, and (ii) accurately reflects in all material respects all transactions referred to in such minutes.
(zz).
Regulations. The disclosures in the Registration Statement and the Prospectus concerning the effects of federal, state, local
and all foreign regulation on the Company’s business in the past and as currently contemplated are correct in all material respects
and no other such regulations are required to be disclosed in the Registration Statement and the Prospectus which are not so disclosed.
(aaa).
Regulatory Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the appropriate
federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the Registration
Statement and the Prospectus, except where the failure to possess such certificates, authorizations or permits could not reasonably be
expected to result in a Material Adverse Change (“Material Permits”), and neither the Company nor any Subsidiary
has received any notice of proceedings relating to the revocation or modification of any Material Permit.
(bbb).
Cybersecurity. The Company’s information technology assets and equipment, computers, systems, networks, hardware, software,
websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate and perform
in all material respects as required in connection with the operation of the business of the Company as currently conducted, free and
clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants that would reasonably be expected
to have a Material Adverse Change on the Company’s business. The Company has implemented and maintained commercially reasonable
physical, technical and administrative controls, policies, procedures, and safeguards to maintain and protect their material confidential
information and the integrity, continuous operation, redundancy and security of all IT Systems and data, including “Personal Data,”
used in connection with their businesses. “Personal Data” means (i) a natural person’s name, street address,
telephone number, e-mail address, photograph, social security number or tax identification number, driver’s license number, passport
number, credit card number, bank information, or customer or account number; (ii) any information which would qualify as “personally
identifying information” under the Federal Trade Commission Act, as amended; (iii) “personal data” as defined by the
European Union General Data Protection Regulation (“GDPR”) (EU 2016/679); (iv) any information which would
qualify as “protected health information” under the Health Insurance Portability and Accountability Act of 1996, as amended
by the Health Information Technology for Economic and Clinical Health Act (collectively, “HIPAA”); and (v)
any other piece of information that allows the identification of such natural person, or his or her family, or permits the collection
or analysis of any data related to an identified person’s health or sexual orientation. There have been no breaches, violations,
outages or unauthorized uses of or accesses to same, except for those that have been remedied without material cost or liability
or the duty to notify any other person or such, nor any incidents under internal review or investigations relating to the same except
in each case, where such would not, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Change.
The Company is presently in material compliance with all applicable laws or statutes and all judgments, orders, rules and regulations
of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy
and security of IT Systems and Personal Data and to the protection of such IT Systems and Personal Data from unauthorized use, access,
misappropriation or modification except in each case, where such would not, either individually or in the aggregate, reasonably be expected
to result in a Material Adverse Change.
(ccc).
Confidentiality and Non-Competitions. To the Company’s knowledge, no director, officer, key employee or consultant of the
Company is subject to any confidentiality, non-disclosure, non-competition agreement or non-solicitation agreement with any employer
or prior employer that could reasonably be expected to materially affect his ability to be and act in his respective capacity of the
Company or be expected to result in a Material Adverse Change.
(ddd).
Bank Holding Company Act. The Company is not subject to the Bank Holding Company Act of 1956, as amended (the “BHCA”)
and to regulation by the Federal Reserve Board. The Company does not own or controls, directly or indirectly, five percent (5%) or more
of the outstanding shares of any class of voting securities or twenty-five percent (25%) or more of the total equity of a bank or any
entity that is subject to the BHCA and to regulation by the Federal Reserve Board. The Company does not exercise a controlling influence
over the management or policies of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve Board.
(eee).
Application of Takeover Protections. The Company and the Board of Directors shall have taken all necessary action, if any, in
order to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights
agreement) or other similar anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents)
or the laws of its state of incorporation that is or would become applicable to the Placement Shares.
(fff).
No Disagreements with Accountants and Lawyers. There are no material disagreements of any kind presently existing, or reasonably
anticipated by the Company to arise, between the Company and the accountants and lawyers formerly or presently employed by the Company
and the Company is current with respect to any fees owed to its accountants and lawyers which could affect the Company’s ability
to perform any of its obligations under this Agreement.
(ggg).
Compliance with Data Privacy Laws. The Company is, and since January 1, 2018 has been, in compliance with all applicable state
and federal data privacy and security laws and regulations, including without limitation HIPAA, and the Company has taken commercially
reasonable actions to prepare to comply with, and since May 25, 2018, has been and currently are in compliance with, the GDPR (EU 2016/679)
(collectively, the “Privacy Laws”) except in each case, where such would not, either individually or in the
aggregate, reasonably be expected to result in a Material Adverse Change. To ensure compliance with the Privacy Laws, the Company has
in place, comply with, and take appropriate steps reasonably designed to ensure compliance in all material respects with their policies
and procedures relating to data privacy and security and the collection, storage, use, disclosure, handling, and analysis of Personal
Data (the “Policies”). The Company has at all times made all disclosures to users or customers required by
applicable laws and regulatory rules or requirements, and none of such disclosures made or contained in any Policy have, to the knowledge
of the Company, been inaccurate or in violation of any applicable laws and regulatory rules or requirements in any material respect.
The Company further certifies that it: (i) has not received notice of any actual or potential liability under or relating to, or actual
or potential violation of, any of the Privacy Laws, and has no knowledge of any event or condition that would reasonably be expected
to result in any such notice; (ii) is currently conducting or paying for, in whole or in part, any investigation, remediation, or other
corrective action pursuant to any Privacy Law; or (iii) is a party to any order, decree, or agreement that imposes any obligation or
liability under any Privacy Law.
(hhh).
U.S. Real Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation within
the meaning of Section 897 of the Internal Revenue Code of 1986, as amended, and the Company shall so certify upon Purchaser’s
request.
(iii).
Stock Option Plans. Each stock option granted by the Company under the Company’s stock incentive plans was granted (i) in
accordance with the terms of such plan and (ii) with an exercise price at least equal to the fair market value of the Common Stock on
the date such stock option would be considered granted under GAAP and applicable law. No stock option granted under the Company’s
stock option plan has been backdated.
Any
certificate signed by an officer of the Company and delivered to the Sales Agent or to counsel for the Sales Agent pursuant to or in
connection with this Agreement shall be deemed to be a representation and warranty by the Company to the Sales Agent as to the matters
set forth therein.
The
Company acknowledges that the Sales Agent and, for purposes of the opinions to be delivered pursuant to Section 7 hereof, counsel
to the Company and counsel to the Sales Agent, will rely upon the accuracy and truthfulness of the foregoing representations and hereby
consents to such reliance.
7.
Covenants of the Company. The Company covenants and agrees with the Sales Agent that:
(a)
Registration Statement Amendments. After the date of this Agreement and during any period in which a Prospectus relating to any
Placement Shares is required to be delivered by the Sales Agent under the Securities Act (including in circumstances where such requirement
may be satisfied pursuant to Rule 153 or Rule 172 under the Securities Act), (i) the Company will notify the Sales Agent promptly of
the time when any subsequent amendment to the Registration Statement, other than documents incorporated by reference, has been filed
with the Commission and/or has become effective or any subsequent supplement to the Prospectus has been filed and of any request by the
Commission for any amendment or supplement to the Registration Statement or Prospectus or for additional information; (ii) the Company
will prepare and file with the Commission, promptly upon the Sales Agent’s reasonable request, any amendments or supplements to
the Registration Statement or Prospectus that, in the Sales Agent’s reasonable opinion, may be necessary or advisable in connection
with the distribution of the Placement Shares by the Sales Agent (provided, however, that the failure of the Sales Agent
to make such request shall not relieve the Company of any obligation or liability hereunder, or affect the Sales Agent’s right
to rely on the representations and warranties made by the Company in this Agreement, and provided, further, that the only
remedy the Sales Agent shall have with respect to the failure to make such filing shall be to cease making sales under this Agreement
until such amendment or supplement is filed); (iii) the Company will not file any amendment or supplement to the Registration Statement
or Prospectus, other than documents incorporated by reference, relating to the Placement Shares or a security convertible into the Placement
Shares unless a copy thereof has been submitted to the Sales Agent prior to any filing of an amendment or supplement to the Registration
Statement or Prospectus (provided, however, that the failure of the Sales Agent to make an objection shall not relieve
the Company of any obligation or liability hereunder, or affect the Sales Agent’s right to rely on the representations and warranties
made by the Company in this Agreement, and provided, further, that the only remedy the Sales Agent shall have with respect
to the failure by the Company to obtain such consent shall be to cease making sales under this Agreement); (iv) the Company will furnish
to the Sales Agent at the time of filing thereof a copy of any document that upon filing is deemed to be incorporated by reference into
the Registration Statement or Prospectus, except for those documents available via EDGAR; and (v) the Company will cause each amendment
or supplement to the Prospectus, other than documents incorporated by reference, to be filed with the Commission as required pursuant
to the applicable paragraph of Rule 424(b) of the Securities Act (without reliance on Rule 424(b)(8) of the Securities Act) or, in the
case of any documents incorporated by reference, to be filed with the Commission as required pursuant to the Exchange Act, within the
time period prescribed.
(b)
Notice of Commission Stop Orders. The Company will advise the Sales Agent, promptly after it receives notice or obtains knowledge
thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any notice
objecting to, or other order preventing or suspending the use of, the Prospectus, of the suspension of the qualification of the Placement
Shares for offering or sale in any jurisdiction, or of the initiation of any proceeding for any such purpose or any examination pursuant
to Section 8(e) of the Securities Act, or if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in
connection with the offering of the Placement Shares; and it will promptly use its commercially reasonable efforts to prevent the issuance
of any stop order or to obtain its withdrawal if such a stop order should be issued. Until such time as any stop order is lifted, the
Sales Agent shall cease making offers and sales under this Agreement.
(c)
Delivery of Prospectus; Subsequent Changes. During any period in which a Prospectus relating to the Placement Shares is required
to be delivered by the Sales Agent under the Securities Act with respect to a pending sale of the Placement Shares (including in circumstances
where such requirement may be satisfied pursuant to Rule 153 or Rule 172 under the Securities Act), the Company will comply in all material
respects with all requirements imposed upon it by the Securities Act, as from time to time in force, and to file on or before their respective
due dates all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant
to Sections 13(a), 13(c), 14, 15(d) or any other provision of or under the Exchange Act. If during such period any event occurs as a
result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state
a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or if during
such period it is necessary to amend or supplement the Registration Statement or Prospectus to comply with the Securities Act, the Company
will promptly notify the Sales Agent to suspend the offering of Placement Shares during such period and the Company will promptly amend
or supplement the Registration Statement or Prospectus (at the expense of the Company) so as to correct such statement or omission or
effect such compliance; provided, however, that the Company may delay any such amendment or supplement if, in the reasonable
judgment of the Company, it is in the best interests of the Company to do so.
(d)
Listing of Placement Shares. During any period in which the Prospectus relating to the Placement Shares is required to be delivered
by the Sales Agent under the Securities Act with respect to a pending sale of the Placement Shares (including in circumstances where
such requirement may be satisfied pursuant to Rule 153 or Rule 172 under the Securities Act), the Company will use its commercially reasonable
efforts to cause the Placement Shares to be listed on the Exchange and to qualify the Placement Shares for sale under the securities
laws of such jurisdictions as the Sales Agent reasonably designates and to continue such qualifications in effect so long as required
for the distribution of the Placement Shares; provided, however, that the Company shall not be required in connection therewith
to qualify as a foreign corporation or dealer in securities or file a general consent to service of process in any jurisdiction.
(e)
Delivery of Registration Statement and Prospectus. The Company will furnish to the Sales Agent and its counsel (at the expense
of the Company) copies of the Registration Statement, the Prospectus (including all documents incorporated by reference therein) and
all amendments and supplements to the Registration Statement or Prospectus that are filed with the Commission during any period in which
a Prospectus relating to the Placement Shares is required to be delivered under the Securities Act (including all documents filed with
the Commission during such period that are deemed to be incorporated by reference therein), in each case as soon as reasonably practicable
and in such quantities as the Sales Agent may from time to time reasonably request and, at the Sales Agent’s request, will also
furnish copies of the Prospectus to each exchange or market on which sales of the Placement Shares may be made; provided, however,
that the Company shall not be required to furnish any document (other than the Prospectus) to the Sales Agent to the extent such document
is available on EDGAR.
(f)
Earnings Statement. The Company will make generally available to its security holders as soon as practicable, but in any event
not later than 15 months after the end of the Company’s current fiscal quarter, an earnings statement of the Company and its Subsidiaries
(which need not be audited) covering a 12-month period that complies with Section 11(a) and Rule 158 of the Securities Act. The terms
“earnings statement” and “make generally available to its security holders” shall have the meanings set forth
in Rule 158 under the Securities Act.
(g)
Expenses. The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated
in accordance with the provisions of Section 11 hereunder, will pay the following expenses all incident to the performance of
its obligations hereunder, including, but not limited to, expenses relating 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 the Placement Shares, including any stock or other transfer taxes and any stamp or other duties payable upon
the sale, issuance or delivery of the Placement Shares to the Sales Agent, (iii) the fees and disbursements of the counsel, accountants
and other advisors to the Company in connection with the transactions contemplated by this Agreement; (iv) the qualification of the Placement
Shares under securities laws in accordance with the provisions of Section 7(d) of this Agreement, including filing fees (provided,
however, that any fees or disbursements of counsel for the Sales Agent in connection therewith will be paid by the Sales Agent
except as set forth in (ix) below), (v) the printing and delivery to the Sales Agent of copies of the Prospectus and any amendments or
supplements thereto, and of this Agreement, (vi) the fees and expenses incurred in connection with the listing or qualification of the
Placement Shares for trading on the Exchange, (vii) the fees and expenses of the transfer agent or registrar for the Common Stock; (viii)
filing fees and expenses, if any, of the Commission and the FINRA Corporate Financing Department (provided, however, that
any fees or disbursements of counsel for the Sales Agent in connection therewith shall be paid by the Sales Agent except as set forth
in (ix) below) and (ix) the Company shall reimburse the Sales Agent for its reasonable and documented out-of-pocket costs and expenses
in an amount not to exceed $10,000 and the expenses of counsel to
the
Sales Agent in an amount not to exceed $50,000,$25,000 of which shall be payable upon execution of this Agreement and the remaining $25,000
of which shall be payable on or before October 15, 2024; provided further that, as long as the Sales Agent is continuing to sell Placement
Shares under this Agreement, the Company shall reimburse the Sales Agent for its reasonable and documented expenses (including but not
limited to the reasonable fees and documented out-of-pocket costs and expenses of counsel to the Sales Agent) on an annual basis in an
amount not to exceed $10,000.
(h)
Use of Proceeds. The Company will use the Net Proceeds as described in the Prospectus in the section entitled “Use of Proceeds.”
(i)
Notice of Other Sales. The Company (I) shall provide the Sales Agent notice as promptly as reasonably possible,
before it offers to sell, contracts to sell, sells, grants any option to sell or otherwise disposes of any shares of Common Stock
(other than Placement Shares offered pursuant to the provisions of this Agreement) or securities convertible into or exchangeable for
Common Stock, or warrants or any rights to purchase or acquire Common Stock, during the period beginning on the date on which any Placement
Notice is delivered to the Sales Agent hereunder and ending on the first (1st) Trading Day immediately following the final
Settlement Date with respect to Placement Shares sold pursuant to such Placement Notice (or, if the Placement Notice has been terminated
or suspended prior to the sale of all Placement Shares covered by a Placement Notice, the date of such suspension or termination), and
(II) will not directly or indirectly enter into or utilize any other “at-the-market” or continuous equity transaction offer
to sell, sell, contract to sell, grant any option to sell or otherwise dispose of any shares of Common Stock (other than the Placement
Shares offered pursuant to this Agreement) or securities convertible into or exchangeable for shares of Common Stock, warrants or any
rights to purchase or acquire, shares of Common Stock prior to the termination of this Agreement; provided, however, that
such notice requirements or restrictions, as the case may be, will not be required in connection with the Company’s issuance or
sale of (i) shares of Common Stock, options to purchase shares of Common Stock, other equity awards or shares of Common Stock issuable
upon the exercise of options or other equity awards, pursuant to any employee or director stock option or benefits plan, stock ownership
plan or dividend reinvestment plan of the Company whether now in effect or hereafter implemented, (ii) shares of Common Stock issuable
upon exchange, conversion or redemption of securities or the exercise of warrants, options or other rights in effect or outstanding,
and disclosed in filings by the Company available on EDGAR or otherwise in writing (including by e-mail correspondence) to the Sales
Agent and (iii) shares of Common Stock or securities convertible into or exchangeable for shares of Common Stock as consideration for
mergers, acquisitions, sale or purchase of assets, other business combinations or strategic alliances, vendor, consultant, customer or
other comparable transactions occurring after the date of this Agreement which are not issued for capital raising purposes.
(j)
Change of Circumstances. The Company will, at any time during a fiscal quarter in which the Company intends to tender a Placement
Notice or sell Placement Shares, advise the Sales Agent promptly after it shall have received notice or obtained knowledge thereof, of
any information or fact that would alter or affect in any material respect any opinion, certificate, letter or other document provided
to the Sales Agent pursuant to this Agreement.
(k)
Due Diligence Cooperation. The Company will cooperate with any reasonable due diligence review conducted by the Sales Agent or
its agents in connection with the transactions contemplated hereby, including, without limitation, providing information and making available
documents and senior corporate officers, during regular business hours and at the Company’s principal offices, as the Sales Agent
may reasonably request.
(l)
Required Filings Relating to Placement of Placement Shares. The Company shall set forth in each Annual Report on Form 10-K and
Quarterly Report on Form 10-Q filed by the Company with the Commission in respect of any quarter in which sales of Placement Shares were
made by or through the Sales Agent under this Agreement, with regard to the relevant period, the amount of Placement Shares sold to or
through the Sales Agent, the Net Proceeds to the Company and the compensation payable by the Company to the Sales Agent with respect
to such sales of Placement Shares. To the extent that the filing of a prospectus supplement with the Commission with respect to any sales
of Placement Shares becomes required under Rule 424(b) under the Securities Act, the Company agrees that, on or before such dates as
the Securities Act shall require, the Company will (i) file a prospectus supplement with the Commission under the applicable paragraph
of Rule 424(b) under the Securities Act, which prospectus supplement will set forth, with regard to the relevant period, the amount of
Placement Shares sold to or through the Sales Agent, the Net Proceeds to the Company and the compensation payable by the Company to the
Sales Agent with respect to such Placement Shares, and (ii) deliver such number of copies of each such prospectus supplement to each
exchange or market on which such sales were effected as may be required by the rules or regulations of such exchange or market. The Company
shall afford the Sales Agent and its counsel with a reasonable opportunity to review and comment upon, shall consult with the Sales Agent
and its counsel on the form and substance of, and shall give due consideration to all such comments from the Sales Agent or its counsel
on, any such filing prior to the issuance, filing or public disclosure thereof; provided, however, that the Company shall not be required
to submit for review (A) any portion of any periodic reports filed with the Commission under the Exchange Act other than the specific
disclosure relating to any sales of Placement Shares and (B) any disclosure contained in periodic reports filed with the Commission under
the Exchange Act if it shall have previously provided the same disclosure for review in connection with a previous filing.
(m)
Representation Dates; Certificate. On or prior to the date the first Placement Notice is given hereunder and each time the Company
(i) files the Prospectus relating to the Placement Shares or amends or supplements the Registration Statement or the Prospectus relating
to the Placement Shares (other than (A) a prospectus supplement filed in accordance with Section 7(l) of this Agreement or (B)
a supplement or amendment that relates to an offering of securities other than the Placement Shares) by means of a post-effective amendment,
sticker, or supplement but not by means of incorporation of document(s) by reference to the Registration Statement or the Prospectus
relating to the Placement Shares; (ii) files an annual report on Form 10-K under the Exchange Act (including any Form 10-K/A containing
amended financial information or a material amendment to the previously filed Form 10-K); (iii) files a quarterly report on Form 10-Q
under the Exchange Act; or (iv) files a current report on Form 8-K containing amended financial information (other than an earnings release,
to “furnish” information pursuant to Items 2.02 or 7.01 of Form 8-K or to provide disclosure pursuant to Item 8.01 of Form
8-K relating to the reclassification of certain properties as discontinued operations in accordance with Statement of Financial Accounting
Standards No. 144) under the Exchange Act (each date of filing of one or more of the documents referred to in clauses (i) through (iv)
shall be a “Representation Date”), the Company shall furnish the Sales Agent within three (3) Trading Days
after each Representation Date with a certificate, in the form attached hereto as Exhibit 7(m). The requirement to provide a certificate
under this Section 7(m) shall be waived for any Representation Date occurring at a time at which no Placement Notice is pending,
which waiver shall continue until the earlier to occur of the date the Company delivers a Placement Notice hereunder (which for such
calendar quarter shall be considered a Representation Date) and the next occurring Representation Date; provided, however, that
such waiver shall not apply for any Representation Date on which the Company files its annual report on Form 10-K. Notwithstanding the
foregoing, if the Company subsequently decides to sell Placement Shares following a Representation Date when the Company relied on such
waiver and did not provide the Sales Agent with a certificate under this Section 7(m), then before the Company delivers the Placement
Notice or the Sales Agent sells any Placement Shares, the Company shall provide the Sales Agent with a certificate, in the form attached
hereto as Exhibit 7(m), dated the date of the Placement Notice.
(n)
Legal Opinions. On or prior to the date the first Placement Notice is given hereunder, the Company shall cause to be furnished
to the Sales Agent the written opinion and negative assurance of Ellenoff Grossman & Schole LLP, as counsel to the Company, or other
counsel reasonably satisfactory to the Sales Agent (“Company Counsel”), in such case substantially in the form
previously agreed between the Company and the Sales Agent. Thereafter, within five (5) Trading Days after each Representation Date with
respect to which the Company is obligated to deliver a certificate pursuant to Section 7(m) for which no waiver is applicable
pursuant to Section 7(m), the Company shall cause to be furnished to the Sales Agent the written opinion and negative assurance
of the Company Counsel substantially in the forms previously agreed between the Company and the Sales Agent, modified, as necessary,
to relate to the Registration Statement and the Prospectus as then amended or supplemented and within five (5) Trading Days after the
Representation Date with respect to which the Company is obligated to deliver a certificate pursuant to Section 7(m) for which no waiver
is applicable pursuant to Section 7(m), other than a Representation Date under Section 7(m)(iv); provided, however, that
if the Company Counsel has previously furnished to the Sales Agent such written opinion and negative assurance of such counsel, in each
case substantially in the forms previously agreed between the Company and the Sales Agent, then the Company Counsel may, in respect of
any future Representation Date, furnish the Sales Agent with a letter signed by such counsel (each, a “Reliance Letter”)
in lieu of such opinion and negative assurance of such counsel to the effect that the Sales Agent may rely on the prior opinion and negative
assurance of such counsel delivered pursuant to this Section 7(n) to the same extent as if it were dated the date of such Reliance
Letter (except that statements in such prior opinion and negative assurance shall be deemed to relate to the Registration Statement and
the Prospectus as amended or supplemented to the date of such Reliance Letter).
(o)
Comfort Letter. On or prior to the date the first Placement Notice is given hereunder and within three (3) Trading Days after
the subsequent Representation Date with respect to which the Company is obligated to deliver a certificate pursuant to Section 7(m),
other than a Representation Date under Section 7(m)(iii)-(iv) unless with respect to a Representation Date under Section 7(m)(iv) the
Sales Agent reasonably requests delivery thereof, the Company shall cause its independent accountants to furnish the Sales Agent letters
(the “Comfort Letters”), dated the date that the Comfort Letter is delivered, in form and substance satisfactory
to the Sales Agent, (i) confirming that they are an independent registered public accounting firm within the meaning of the Securities
Act, the Exchange Act and the rules and regulations of the PCAOB and are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of such date, the conclusions and
findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort
letters” to the Sales Agent in connection with registered public offerings (the first such letter, the “Initial Comfort
Letter”) and (iii) updating the Initial Comfort Letter with any information that would have been included in the Initial
Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement and the Prospectus, as
amended and supplemented to the date of such letter.
(p)
Market Activities. The Company will not, directly or indirectly, (i) take any action designed to cause or result in, or that constitutes
or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Common Stock or (ii) sell, bid for, or purchase shares of Common Stock in violation of Regulation M, or pay
anyone any compensation for soliciting purchases of the Placement Shares other than the Sales Agent.
(q)
Insurance. The Company and its Subsidiaries shall maintain, or cause to be maintained, insurance in such amounts and covering
such risks as is reasonable and customary for the business in which it is engaged.
(r)
Investment Company Act. The Company will conduct its affairs in such a manner so as to reasonably ensure that neither it nor its
Subsidiaries or, after giving effect to the offering and sale of the Placement Shares and the application of proceeds therefrom as described
in the Prospectus, will be, an “investment company” within the meaning of such term under the Investment Company Act.
(s)
Securities Act and Exchange Act. The Company will use its commercially reasonable efforts to comply with all requirements imposed
upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales
of, or dealings in, the Placement Shares as contemplated by the provisions hereof and the Prospectus.
(t)
No Offer to Sell. Other than the Prospectus and an Issuer Free Writing Prospectus approved in advance by the Company and the Sales
Agent in its capacity as principal or agent hereunder, neither the Sales Agent nor the Company (including its agents and representatives,
other than the Sales Agent in its capacity as such) will make, use, prepare, authorize, approve or refer to any written communication
(as defined in Rule 405 under the Securities Act), required to be filed with the Commission, that constitutes an offer to sell or solicitation
of an offer to buy Placement Shares hereunder.
(u)
Sarbanes-Oxley Act. The Company and its Subsidiaries will use their reasonable efforts to comply with all effective applicable
provisions of the Sarbanes-Oxley Act.
(v)
Transfer Agent. The Company shall maintain, at its sole expense, a registrar and transfer agent for the Common Stock.
8.
Conditions to the Sales Agent’s Obligations. The obligations of the Sales Agent hereunder with respect to a Placement will
be subject to the continuing accuracy and completeness of the representations and warranties made by the Company herein, to the due performance
by the Company of its obligations hereunder, to the completion by the Sales Agent of a due diligence review satisfactory to the Sales
Agent in its reasonable judgment, and to the continuing satisfaction (or waiver by the Sales Agent in its sole discretion) of the following
additional conditions:
(a)
Registration Statement Effective. The Registration Statement shall be effective and shall be available for the sale of all Placement
Shares contemplated to be issued by any Placement Notice, which have not yet been issued and sold pursuant to such Registration Statement.
(b)
Securities Act Filings Made. The Company shall have filed with the Commission the ATM Prospectus pursuant to Rule 424(b) under
the Securities Act not later than the Commission’s close of business on the second Business Day following the date of this Agreement.
All other filings with the Commission required by Rule 424(b) or Rule 433 under the Securities Act to have been filed prior to the issuance
of any Placement Notice hereunder shall have been made within the applicable time period prescribed for such filing by Rule 424(b) (without
reliance on Rule 424(b)(8) of the Securities Act) or Rule 433, as applicable.
(c)
No Material Notices. None of the following events shall have occurred and be continuing: (i) receipt by the Company or any of
its Subsidiaries of any request for additional information from the Commission or any other federal or state governmental authority during
the period of effectiveness of the Registration Statement, the response to which would require any post-effective amendments or supplements
to the Registration Statement or the Prospectus; (ii) the issuance by the Commission or any other federal or state governmental authority
of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; (iii)
receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any
of the Placement Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the occurrence
of any event that makes any material statement made in the Registration Statement or the Prospectus or any material 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 such documents so that, in the case of the Registration Statement, it will not contain any materially
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 Prospectus, it will not contain any materially 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.
(d)
No Misstatement or Material Omission. The Sales Agent shall not have advised the Company that the Registration Statement or Prospectus,
or any amendment or supplement thereto, contains an untrue statement of fact that in the Sales Agent’s reasonable opinion is material,
or omits to state a fact that in the Sales Agent’s reasonable opinion is material and is required to be stated therein or is necessary
to make the statements therein not misleading.
(e)
Material Changes. Except as contemplated in the Prospectus, or disclosed in the Company’s reports filed with the Commission,
there shall not have been any material adverse change in the authorized capital stock of the Company or any Material Adverse Change or
any development that could reasonably be expected to result in a Material Adverse Change, the effect of which, in the case of any such
action by a rating organization described above, in the reasonable judgment of the Sales Agent (without relieving the Company of any
obligation or liability it may otherwise have), is so material as to make it impracticable or inadvisable to proceed with the offering
of the Placement Shares on the terms and in the manner contemplated by this Agreement and the Prospectus.
(f)
Representation Certificate. The Sales Agent shall have received the certificate required to be delivered pursuant to Section
7(m) on or before the date on which delivery of such certificate is required pursuant to Section 7(m).
(g)
Legal Opinions. The Sales Agent shall have received the opinions and negative assurance of Company Counsel as required to be delivered
pursuant Section 7(n) on or before the date on which such delivery of such opinions and negative assurance, as applicable, is
required pursuant to Section 7(n).
(h)
Comfort Letter. The Sales Agent shall have received the Comfort Letter required to be delivered pursuant Section 7(o) on
or before the date on which delivery of such Comfort Letter is required pursuant to Section 7(o).
(i)
Officer’s Certificate. On or prior to the date the first Placement Notice is given hereunder, the Sales Agent shall have
received a certificate, signed on behalf of the Company by its President and Chief Executive Officer, certifying as to (i) the articles
of incorporation of the Company (as the same may be amended or restated from time to time), (ii) the bylaws of the Company (as the same
may be amended or restated from time to time), (iii) the resolutions of the Board of Directors of the Company (or a committee thereof)
authorizing the execution, delivery and performance of this Agreement and the issuance of the Placement Shares and (iv) the incumbency
of the officers duly authorized to execute this Agreement and the other documents contemplated by this Agreement.
(j)
No Suspension. Trading in the Common Stock shall not have been suspended on the Exchange and the Common Stock shall not have been
delisted from the Exchange.
(k)
Other Materials. On each date on which the Company is required to deliver a certificate pursuant to Section 7(m), the Company
shall have furnished to the Sales Agent such appropriate further opinions, certificates, letters and documents as the Sales Agent may
have reasonably requested. All such opinions, certificates, letters and other documents shall have been in compliance with the provisions
hereof. The Company will furnish the Sales Agent with such conformed copies of such opinions, certificates, letters and other documents
as the Sales Agent shall have reasonably requested.
(l)
Approval for Listing. The Placement Shares shall either have been (i) approved for listing on the Exchange, subject only to notice
of issuance, or (ii) the Company shall have filed an application for listing of the Placement Shares on the Exchange at, or prior to,
the issuance of any Placement Notice.
(m)
No Termination Event. There shall not have occurred any event that would permit the Sales Agent to terminate this Agreement pursuant
to Section 11(a).
(n)
FINRA. The Sales Agent shall have received a letter from the Corporate Financing Department of FINRA confirming that such department
has determined to raise no objection with respect to the fairness or reasonableness of the terms and arrangements related to the sale
of the Placement Shares pursuant to this Agreement.
9.
Indemnification and Contribution.
(a)
Company Indemnification. The Company agrees to indemnify and hold harmless the Sales Agent, the directors, officers, members,
partners, employees and agents of the Sales Agent, each broker dealer affiliate of the Sales Agent, and each Sales Agent Affiliate, if
any, from and against any and all losses, claims, liabilities, expenses and damages (including, but not limited to, any and all reasonable
investigative, legal and other expenses incurred in connection with, and any and all amounts paid in settlement (in accordance with Section
9(c)) of, any action, suit or proceeding between any of the indemnified parties and any indemnifying parties or between any indemnified
party and any third party, or otherwise, or any claim asserted), as and when incurred, to which the Sales Agent, or any such person,
may become subject under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, liabilities, expenses or damages arise out of or are based, directly or indirectly, on (x)
any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or the Prospectus or any
amendment or supplement thereto or in any Issuer Free Writing Prospectus or in any application or other document executed by or on behalf
of the Company or based on written information furnished by or on behalf of the Company filed in any jurisdiction in order to qualify
the Common Stock under the securities laws thereof or filed with the Commission, (y) the omission or alleged omission to state in any
such document a material fact required to be stated in it or necessary to make the statements in it not misleading or (z) any breach
by any of the indemnifying parties of any of their respective representations, warranties and agreements contained in this Agreement;
provided, however, that this indemnity agreement shall not apply to the extent that such loss, claim, liability, expense or damage
arises from the sale of the Placement Shares pursuant to this Agreement and is caused directly by an untrue statement or omission made
in reliance upon and in strict conformity with written information relating to the Sales Agent and furnished to the Company by the Sales
Agent expressly for inclusion in any document as described in clause (x) of this Section 9(a). This indemnity agreement will be
in addition to any liability that the Company might otherwise have.
(b)
The Sales Agent Indemnification. The Sales Agent agrees to indemnify and hold harmless the Company and its directors and each
officer of the Company that signed the Registration Statement, and each person, if any, who (i) controls the Company within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act or (ii) is controlled by or is under common control with the Company
(each, a “Company Affiliate”) from and against any and all losses, claims, liabilities, expenses and damages
(including, but not limited to, any and all reasonable investigative, legal and other expenses incurred in connection with, and any and
all amounts paid in settlement (in accordance with Section 9(c)) of, any action, suit or proceeding between any of the indemnified
parties and any indemnifying parties or between any indemnified party and any third party, or otherwise, or any claim asserted), as and
when incurred, to which any such Company Affiliate, may become subject under the Securities Act, the Exchange Act or other federal or
state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, liabilities, expenses or damages arise
out of or are based, directly or indirectly, on (x) any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or the Prospectus or any amendment or supplement thereto, or (y) the omission or alleged omission to state
in any such document a material fact required to be stated in it or necessary to make the statements in it not misleading; provided,
however, that this indemnity agreement shall apply only to the extent that such loss, claim, liability, expense or damage is caused
directly by an untrue statement or omission made in reliance upon and in strict conformity with written information relating to the Sales
Agent and furnished to the Company by the Sales Agent expressly for inclusion in any document as described in clause (x) of this Section
9(b).
(c)
Procedure. Any party that proposes to assert the right to be indemnified under this Section 9 will, promptly after receipt
of notice of commencement of any action against such party in respect of which a claim is to be made against an indemnifying party or
parties under this Section 9, notify each such indemnifying party of the commencement of such action, enclosing a copy of all
papers served, but the omission so to notify such indemnifying party will not relieve the indemnifying party from (i) any liability that
it might have to any indemnified party otherwise than under this Section 9 and (ii) any liability that it may have to any indemnified
party under the foregoing provision of this Section 9 unless, and only to the extent that, such omission results in the forfeiture
of substantive rights or defenses by the indemnifying party. If any such action is brought against any indemnified party and it notifies
the indemnifying party of its commencement, the indemnifying party will be entitled to participate in and, to the extent that it elects
by delivering written notice to the indemnified party promptly after receiving notice of the commencement of the action from the indemnified
party, jointly with any other indemnifying party similarly notified, to assume the defense of the action, with counsel reasonably satisfactory
to the indemnified party, and after notice from the indemnifying party to the indemnified party of its election to assume the defense,
the indemnifying party will not be liable to the indemnified party for any legal or other expenses except as provided below and except
for the reasonable costs of investigation subsequently incurred by the indemnified party in connection with the defense. The indemnified
party will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will
be at the expense of such indemnified party unless (1) the employment of counsel by the indemnified party has been authorized in writing
by the indemnifying party, (2) the indemnified party has reasonably concluded (based on advice of counsel) that there may be legal defenses
available to it or other indemnified parties that are different from or in addition to those available to the indemnifying party, (3)
a conflict or potential conflict exists (based on advice of counsel to the indemnified party) between the indemnified party and the indemnifying
party (in which case the indemnifying party will not have the right to direct the defense of such action on behalf of the indemnified
party) or (4) the indemnifying party has not in fact employed counsel to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel
will be at the expense of the indemnifying party or parties. It is understood that the indemnifying party or parties shall not, in connection
with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges
of more than one separate firm admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All
such fees, disbursements and other charges will be reimbursed by the indemnifying party promptly as they are incurred. An indemnifying
party will not, in any event, be liable for any settlement of any action or claim effected without its written consent. No indemnifying
party shall, without the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment
in any pending or threatened claim, action or proceeding relating to the matters contemplated by this Section 9 (whether or not
any indemnified party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each indemnified
party from all liability arising or that may arise out of such claim, action or proceeding.
(d)
Contribution. In order to provide for just and equitable contribution in circumstances in which the indemnification provided for
in the foregoing paragraphs of this Section 9 is applicable in accordance with its terms but for any reason is held to be unavailable
from the Company or the Sales Agent, the Company and the Sales Agent will contribute to the total losses, claims, liabilities, expenses
and damages (including any investigative, legal and other expenses reasonably incurred in connection with, and any amount paid in settlement
of, any action, suit or proceeding or any claim asserted, but after deducting any contribution received by the Company from persons other
than the Sales Agent, such as persons who control the Company within the meaning of the Securities Act, officers of the Company who signed
the Registration Statement and directors of the Company, who also may be liable for contribution) to which the Company and the Sales
Agent may be subject in such proportion as shall be appropriate to reflect the relative benefits received by the Company on the one hand
and the Sales Agent on the other. The relative benefits received by the Company on the one hand and the Sales Agent on the other hand
shall be deemed to be in the same proportion as the total Net Proceeds from the sale of the Placement Shares (before deducting expenses)
received by the Company bear to the total compensation received by the Sales Agent from the sale of Placement Shares on behalf of the
Company. If, but only if, the allocation provided by the foregoing sentence is not permitted by applicable law, the allocation of contribution
shall be made in such proportion as is appropriate to reflect not only the relative benefits referred to in the foregoing sentence but
also the relative fault of the Company, on the one hand, and the Sales Agent, on the other, with respect to the statements or omission
that resulted in such loss, claim, liability, expense or damage, or action in respect thereof, as well as any other relevant equitable
considerations with respect to such offering. Such relative fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information
supplied by the Company or the Sales Agent, the intent of the parties and their relative knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and the Sales Agent agree that it would not be just and equitable if contributions
pursuant to this Section 9(d) were to be determined by pro rata allocation or by any other method of allocation that does not
take into account the equitable considerations referred to herein. The amount paid or payable by an indemnified party as a result of
the loss, claim, liability, expense, or damage, or action in respect thereof, referred to above in this Section 9(d) shall be
deemed to include, for the purpose of this Section 9(d), any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim to the extent consistent with Section 9(c) hereof. Notwithstanding
the foregoing provisions of this Section 9(d), the Sales Agent shall not be required to contribute any amount in excess of the
commissions received by it under this Agreement and no person found guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) will be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 9(d), any person who controls a party to this Agreement within the meaning of the Securities Act
will have the same rights to contribution as that party (and any officers, directors, members, partners, employees or agents of the Sales
Agent and each broker dealer affiliate of the Sales Agent will have the same rights to contribution as the Sales Agent), and each officer
of the Company who signed the Registration Statement and each director of the Company will have the same rights to contribution as the
Company, subject in each case to the provisions hereof. Any party entitled to contribution, promptly after receipt of notice of commencement
of any action against such party in respect of which a claim for contribution may be made under this Section 9(d), will notify
any such party or parties from whom contribution may be sought, but the omission to so notify will not relieve that party or parties
from whom contribution may be sought from any other obligation it or they may have under this Section 9(d) except to the extent
that the failure to so notify such other party materially prejudiced the substantive rights or defenses of the party from whom contribution
is sought. Except for a settlement entered into pursuant to the last sentence of Section 9(c) hereof, no party will be liable
for contribution with respect to any action or claim settled without its written consent if such consent is required pursuant to Section
9(c) hereof.
10.
Representations and Agreements to Survive Delivery. The indemnity and contribution agreements contained in Section 9 of this Agreement
and all representations and warranties of the Company herein or in certificates delivered pursuant hereto shall survive, as of their
respective dates, regardless of (i) any investigation made by or on behalf of the Sales Agent, any controlling person of the Sales Agent,
or the Company (or any of their respective officers, directors, members or controlling persons), (ii) delivery and acceptance of the
Placement Shares and payment therefor or (iii) any termination of this Agreement.
11.
Termination.
(a)
The Sales Agent shall have the right by giving notice as hereinafter specified at any time to terminate this Agreement if (i) any Material
Adverse Change, or any development that could reasonably be expected to result in a Material Adverse Change has occurred that, in the
reasonable judgment of the Sales Agent, may materially impair the ability of the Sales Agent to sell the Placement Shares hereunder,
(ii) the Company shall have failed, refused or been unable to perform any agreement on its part to be performed hereunder; provided,
however, in the case of any failure of the Company to deliver (or cause another person to deliver) any certification, opinion,
or letter required under Sections 7(m), 7(n) or 7(o), the Sales Agent’s right to terminate shall not arise
unless such failure to deliver (or cause to be delivered) continues for more than thirty (30) days from the date such delivery was required,
(iii) any other condition of the Sales Agent’s obligations hereunder is not fulfilled, or (iv) any suspension or limitation of
trading in the Placement Shares or in securities generally on the Exchange shall have occurred (including automatic halt in trading pursuant
to market-decline triggers, other than those in which solely program trading is temporarily halted), or a major disruption of securities
settlements or clearing services in the United States shall have occurred, or minimum prices for trading have been fixed on the Exchange.
Any such termination shall be without liability of any party to any other party except that the provisions of Section 7(g) (Expenses),
Section 9 (Indemnification and Contribution), Section 10 (Representations and Agreements to Survive Delivery), Section
11(f), Section 16 (Applicable Law; Consent to Jurisdiction) and Section 17 (Waiver of Jury Trial) hereof shall remain
in full force and effect notwithstanding such termination. If the Sales Agent elects to terminate this Agreement as provided in this
Section 11(a), the Sales Agent shall provide the required notice as specified in Section 12 (Notices).
(b)
The Company shall have the right, by giving one (1) days’ notice as hereinafter specified in Section 12, to terminate this
Agreement in its sole discretion at any time after the date of this Agreement. Any such termination shall be without liability of any
party to any other party except that the provisions of Section 7(g), Section 9, Section 10, Section 11(f),
Section 16 and Section 17 hereof shall remain in full force and effect notwithstanding such termination.
(c)
The Sales Agent shall have the right, by giving five (5) days’ notice as hereinafter specified in Section 12, to terminate
this Agreement in its sole discretion at any time after the date of this Agreement. Any such termination shall be without liability of
any party to any other party except that the provisions of Section 7(g), Section 9, Section 10, Section 11(f),
Section 16 and Section 17 hereof shall remain in full force and effect notwithstanding such termination.
(d)
Unless earlier terminated pursuant to this Section 11, this Agreement shall automatically terminate upon the earlier to occur
of (i) issuance and sale of all of the Placement Shares to or through the Sales Agent on the terms and subject to the conditions set
forth herein and (ii) the expiration of the Registration Statement on the third (3rd) anniversary of the initial effective
date of the Registration Statement pursuant to Rule 415(a)(5) under the Securities Act; provided that the provisions of Section
7(g), Section 9, Section 10, Section 11(f), Section 16 and Section 17 hereof shall remain in full
force and effect notwithstanding such termination.
(e)
This Agreement shall remain in full force and effect unless terminated pursuant to Sections 11(a), (b), (c) or (d)
above or otherwise by mutual agreement of the parties; provided, however, that any such termination by mutual agreement
shall in all cases be deemed to provide that Section 7(g), Section 9, Section 10, Section 11(f), Section
16 and Section 17 shall remain in full force and effect.
(f)
Any termination of this Agreement shall be effective on the date specified in such notice of termination; provided, however,
that such termination shall not be effective until the close of business on the date of receipt of such notice by the Sales Agent or
the Company, as the case may be. If such termination shall occur prior to the Settlement Date for any sale of Placement Shares, such
termination shall not become effective until the close of business on such Settlement Date and such Placement Shares shall settle in
accordance with the provisions of this Agreement.
12.
Notices. All notices or other communications required or permitted to be given by any party to any other party pursuant to the
terms of this Agreement shall be in writing, unless otherwise specified, and if sent to the Sales Agent, shall be delivered to:
Spartan
Capital Securities, LLC
45
Broadway, 19th Floor
New
York, NY 10006
Attention:
E-mail:
with
a copy (which shall not constitute notice) to:
Manatt,
Phelps & Phillips, LLP
695
Town Center Drive, 14th Floor
Costa
Mesa, CA 92626
Attn:
Thomas J. Poletti, Esq.; Veronica Lah, Esq.
Email:
tpoletti@mantt.com; vlah@manatt.com
and
if to the Company, shall be delivered to:
Trio
Petroleum Corp.
5401
Business Park South, Suite 115
Bakersfield,
CA 93309
Attn:
Robin Ross, CEO
E-mail:
rross@triopetroleum.us
with
a copy (which shall not constitute notice) to:
Ellenoff
Grossman & Schole LLP
1345
Avenue of the Americas, 11th Floor
New
York, NY 10105
Attention:
Scott Miller, Esq.
E-mail:
smiller@egsllp.com
Each
party may change such address for notices by sending to the other party to this Agreement written notice of a new address for such purpose.
Each such notice or other communication shall be deemed given (i) when delivered personally, by e-mail or by verifiable facsimile transmission
(with an original to follow) on or before 4:30 p.m., New York City time, on a Business Day or, if such day is not a Business Day, on
the next succeeding Business Day, (ii) on the next Business Day after timely delivery to a nationally-recognized overnight courier and
(iii) on the Business Day actually received if deposited in the U.S. mail (certified or registered mail, return receipt requested, postage
prepaid). For purposes of this Agreement, “Business Day” shall mean any day on which the Exchange and commercial
banks in the City of New York are open for business.
An
electronic communication (“Electronic Notice”) shall be deemed written notice for purposes of this Section
12 if sent to the electronic mail address specified by the receiving party under separate cover. Electronic Notice shall be deemed
received at the time the party sending Electronic Notice receives confirmation of receipt by the receiving party (other than pursuant
to auto-reply). Any party receiving Electronic Notice may request and shall be entitled to receive the notice on paper, in a nonelectronic
form (“Nonelectronic Notice”) which shall be sent to the requesting party within ten (10) days of receipt of
the written request for Nonelectronic Notice.
13.
Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and the Sales Agent and their
respective successors and permitted assigns and, as to Sections 5(b) and 9, the other indemnified parties specified therein. References
to any of the parties contained in this Agreement shall be deemed to include the successors and permitted assigns of such party. Nothing
in this Agreement, express or implied, is intended to confer upon any other person any rights, remedies, obligations or liabilities under
or by reason of this Agreement, except as expressly provided in this Agreement. Neither party may assign its rights or obligations under
this Agreement without the prior written consent of the other party; provided, however, that the Sales Agent may assign
its rights and obligations hereunder to an affiliate of the Sales Agent without obtaining the Company’s consent.
14.
Adjustments for Share Splits. The parties acknowledge and agree that all share-related numbers contained in this Agreement shall
be adjusted to take into account any share split, share dividend or similar event effected with respect to the Common Stock.
15.
Entire Agreement; Amendment; Severability. This Agreement (including all schedules and exhibits attached hereto and Placement
Notices issued pursuant hereto) and any other writing entered into by the parties relating to this Agreement constitutes the entire agreement
and supersedes all other prior and contemporaneous agreements and undertakings, both written and oral, among the parties hereto with
regard to the subject matter hereof. Neither this Agreement nor any term hereof may be amended except pursuant to a written instrument
executed by the Company and the Sales Agent. In the event that any one or more of the provisions contained herein, or the application
thereof in any circumstance, is held invalid, illegal or unenforceable as written by a court of competent jurisdiction, then such provision
shall be given full force and effect to the fullest possible extent that it is valid, legal and enforceable, and the remainder of the
terms and provisions herein shall be construed as if such invalid, illegal or unenforceable term or provision was not contained herein,
but only to the extent that giving effect to such provision and the remainder of the terms and provisions hereof shall be in accordance
with the intent of the parties as reflected in this Agreement.
16.
Governing Law; Jurisdiction and Venue Arbitration. This Agreement will be governed by and construed in accordance with
the laws of the State of New York, without regard to principles of conflicts of law. Any controversy between the parties to this Agreement,
or arising out of the Agreement, shall be resolved by arbitration before the American Arbitration Association (“AAA”) or
FINRA Arbitration (FINRA”) in New York, New York. The following arbitration agreement should be read in conjunction with these
disclosures:
| (a) | ARBITRATION
IS FINAL AND BINDING ON THE PARTIES. |
| | | |
| (b) | THE
PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDIES IN COURT, INCLUDING THE RIGHT TO JURY TRIAL. |
| | | |
| (c) | PRE-ARBITRATION
DISCOVERY IS GENERALLY MORE LIMITED THAN AND DIFFERENT FROM COURT PROCEEDING; AND |
| | | |
| (d) | THE
ARBITRATORS’ AWARD IS NOT REQUIRED TO INCLUDE FACTUAL FINDING OR LEGAL REASONING AND
ANY PARTY’S RIGHT TO APPEAL OR TO SEEK MODIFICATION OF RULINGS BY THE ARBITRATORS IS
STRICTLY LIMITED. |
| | | |
| (e) | ARBITRATION
AGREEMENT. ANY AND ALL CONTROVERSIES, DISPUTES OR CLAIMS BETWEEN SPARTAN AND YOU OR YOUR
AGENTS, REPRESENTATIVES, EMPLOYEES, DIRECTORS, OFFICERS OR CONTROL PERSONS, ARISING OUT OF,
IN CONNECTION WITH, OR WITH RESPECT TO (i) ANY PROVISIONS OF OR THE VALIDITY OF THIS AGREEMENT
OR ANY RELATED AGREEMENTS, (ii) THE RELATIONSHIP OF THE PARTIES HERETO, OR (iii) ANY CONTROVERSY
ARISING OUT OF YOUR BUSINESS SHALL BE CONDUCTED BY THE AMERICAN ARBITRATION ASSOCIATION UNDER
ITS COMMERCIAL ARBITRATION RULES OR FINRA ARBITRATION RULES. ARBITRATION MUST BE COMMENCED
BY SERVICE OF A WRITTEN DEMAND FOR ARBITRATION OR A WRITTEN NOTICE OF INTENTION TO ARBITRATE.
IF YOU ARE A PARTY TO SUCH ARBITRATION, TO THE EXTENT PERMITTED BY THE RULES OF THE APPLICABLE
ARBITRATION TRIBUNAL, THE ARBITRATION SHALL BE CONDUCTED IN NEW YORK, NEW YORK. THE DECISION
AND AWARD OF THE ARBITRATORS(S) SHALL BE CONCLUSIVE AND BINDING UPON ALL PARTIES, AND ANY
JUDGMENT UPON ANY AWARD RENDERED MAY BE ENTERED IN THE STATE OR FEDERAL COURTS LOCATED IN
NEW YORK, NEW YORK, OR ANY OTHER COURT HAVING JURISDICTION THEREOF, AND NEITHER PARTY SHALL
OPPOSE SUCH ENTRY. |
17.
[Intentionally left blank]
18.
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a)
the Sales Agent is acting solely as agent in connection with the sale of the Placement Shares contemplated by this Agreement and the
process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates,
stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and the Sales Agent, on the other
hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether the Sales
Agent has advised or is advising the Company on other matters, and the Sales Agent has no obligation to the Company with respect to the
transactions contemplated by this Agreement, except the obligations expressly set forth in this Agreement;
(b)
the Company is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions
contemplated by this Agreement;
(c)
the Sales Agent has not provided any legal, accounting, regulatory or tax advice with respect to the transactions contemplated by this
Agreement, and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d)
the Company has been advised and is aware that the Sales Agent and its affiliates are engaged in a broad range of transactions which
may involve interests that differ from those of the Company and that the Sales Agent has no obligation to disclose such interests and
transactions to the Company by virtue of any fiduciary, advisory or agency relationship; and
(e)
the Company waives, to the fullest extent permitted by law, any claims it may have against the Sales Agent, for breach of fiduciary duty
or alleged breach of fiduciary duty and agrees that the Sales Agent shall have no liability (whether direct or indirect, in contract,
tort or otherwise) to the Company in respect of such a fiduciary claim or to any person asserting a fiduciary duty claim on behalf of
or in right of the Company, including stockholders, partners, employees or creditors of the Company.
19.
Use of Information. The Sales Agent may not provide any information gained in connection with this Agreement and the transactions
contemplated by this Agreement, including due diligence (collectively, the “Information”), to any third party other
than its legal counsel advising it on this Agreement unless expressly approved by the Company in writing. The Sales Agent agrees to use
the same measures to protect the confidentiality of the Information that it uses to protect the confidentiality of its own proprietary
and confidential information and materials of like kind, but in no event less than a reasonable standard of care.
20.
Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. Delivery of an executed Agreement by one party to the other may be made
by facsimile, e-mail or other means of electronic transmission.
21.
Effect of Headings; Knowledge of the Company. The section and Exhibit headings herein are for convenience only and shall not affect
the construction hereof. All references in this Agreement to the “knowledge of the Company” or the “Company’s
knowledge” or similar qualifiers shall mean the actual knowledge of the directors and officers of the Company, after due inquiry.
22.
Definitions. As used in this Agreement, the following term has the meaning set forth below:
(a)
“Applicable Time” means the date of this Agreement, each Representation Date, each date on which a Placement Notice
is given, each Point of Sale, and each Settlement Date.
[Remainder
of Page Intentionally Blank]
If
the foregoing correctly sets forth the understanding between the Company and the Sales Agent, please so indicate in the space provided
below for that purpose, whereupon this letter shall constitute a binding agreement between the Company and the Sales Agent.
| Very truly yours, |
|
| |
|
|
| TRIO PETROLEUM
CORP. |
|
| |
|
|
| By: |
/s/ Robin Ross |
|
| Name: |
Robin Ross |
|
| Title: |
Chief Executive Officer |
|
| ACCEPTED as of the date first-above written: |
|
| |
|
| SPARTAN CAPITAL SECURITIES, LLC |
|
| |
|
|
| By: |
/s/
Kim Monchik |
|
| Name: |
Kim Monchik |
|
| Title: |
Chief Administrative Officer |
|
[Signature
Page to the Common Stock Sales Agreement]
SCHEDULE
1
Form
of Placement Notice
| From: |
Trio
Petroleum Corp. |
| |
|
| To: |
Spartan
Capital Securities, LLC |
| |
Attention:
[•] |
| |
|
| Subject: |
Placement
Notice |
| |
|
| Date: |
[•],
202[•] |
Ladies
and Gentlemen:
Pursuant
to the terms and subject to the conditions contained in the Sales Agreement (the “Sales Agreement”) between
Trio Petroleum Corp., a Delaware corporation (the “Company”), and Spartan Capital Securities, LLC (the “Sales
Agent”), dated September [•], 2024, the Company hereby requests that the Sales Agent sell up to [•] shares of
the Company’s common stock, par value $0.0001 per share (the “Placement Shares”), at a minimum market
price of $[•] per share, during the time period beginning [month, day, time] and ending [month, day, time] [and with no more than
[•] Placement Shares sold in any one Trading Day].
[The
Company may include such other sale parameters as it deems appropriate.]
Capitalized
terms used and not defined herein shall have the respective meanings assigned to them in the Sales Agreement.
SCHEDULE
2
Notice
Parties
Trio
Petroleum Corp.
Robin
Ross (rross@triopetroleum.us)
The
Sales Agent
Kim Monchik (kmonchik@spartancapital.com)
Robert
Fitzpatrick (rfitzpatrick@spartancapital.com)
SCHEDULE
3
Compensation
The
Company shall pay to the Sales Agent in cash, upon each sale of Placement Shares through the Sales Agent pursuant to this Agreement,
an amount equal to 3.00% of the aggregate gross proceeds from each sale of Placement Shares.*
_________________________
*The
foregoing rate of compensation shall not apply when the Sales Agent purchases Placement Shares on a principal basis, in which case the
Company may sell the Placement Shares to the Sales Agent as principal at a price to be mutually agreed upon by the Company and the Sales
Agent at the relevant Point of Sale pursuant to the applicable Placement Notice (it being hereby acknowledged and agreed that the Sales
Agent shall be under no obligation to purchase Placement Shares on a principal basis pursuant to the Sales Agreement, except as otherwise
agreed by the Sales Agent and the Company in writing and expressly set forth in a Placement Notice).
Exhibit
7(m)
OFFICER
CERTIFICATE
The
undersigned, the duly qualified and appointed _____________________ of Trio Petroleum Corp., a Delaware corporation (the “Company”),
does hereby certify in such capacity and on behalf of the Company, pursuant to Section 7(m) of the Sales Agreement, dated [__],
2024 (the “Sales Agreement”), between the Company and Spartan Capital Securities, LLC, that:
| (i) |
the
representations and warranties of the Company in Section 6 of the Sales Agreement (A) to the extent such representations and
warranties are subject to qualifications and exceptions contained therein relating to materiality or Material Adverse Change, are
true and correct on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof, except
for those representations and warranties that speak solely as of a specific date and which were true and correct as of such date,
and (B) to the extent such representations and warranties are not subject to any qualifications or exceptions, are true and correct
in all material respects as of the date hereof as if made on and as of the date hereof with the same force and effect as if expressly
made on and as of the date hereof except for those representations and warranties that speak solely as of a specific date and which
were true and correct as of such date; |
| |
|
| (ii) |
the
Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied pursuant to the Sales
Agreement at or prior to the date hereof; |
| |
|
| (iii) |
as
of the date hereof, (i) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the statements therein not misleading, (ii) the Prospectus does
not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which they were made, not misleading and (iii) no event
has occurred as a result of which it is necessary to amend or supplement the Registration Statement or the Prospectus in order to
make the statements therein not untrue or misleading for clauses (i) and (ii) above, respectively, to be true and correct; |
| |
|
| (iv) |
there
has been no Material Adverse Change since the date as of which information is given in the Prospectus, as amended or supplemented; |
| |
|
| (v) |
the
Company does not currently possess and will not be in possession of any material non-public information at the time of delivery of
any Placement Notice and/or as long as such Placement Notice is effective; and |
| |
|
| (vi) |
the
aggregate offering price of the Placement Shares that may be issued and sold pursuant to the Sales Agreement and the maximum number
or amount of Placement Shares that may be sold pursuant to the Sales Agreement have been duly authorized by the Company’s board
of directors or a duly authorized committee thereof. |
Terms
used herein and not defined herein have the meanings ascribed to them in the Sales Agreement.
| Dated:
____________ |
|
By:________________________________ |
| |
|
|
| |
|
Name: |
| |
|
|
| |
|
Title: |
Exhibit
10.2
Exhibit
10.3
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- DefinitionA unique 10-digit SEC-issued value to identify entities that have filed disclosures with the SEC. It is commonly abbreviated as CIK. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityCentralIndexKey |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:centralIndexKeyItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionIndicate if registrant meets the emerging growth company criteria. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityEmergingGrowthCompany |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionCommission file number. The field allows up to 17 characters. The prefix may contain 1-3 digits, the sequence number may contain 1-8 digits, the optional suffix may contain 1-4 characters, and the fields are separated with a hyphen.
| Name: |
dei_EntityFileNumber |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:fileNumberItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionTwo-character EDGAR code representing the state or country of incorporation.
| Name: |
dei_EntityIncorporationStateCountryCode |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:edgarStateCountryItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionThe exact name of the entity filing the report as specified in its charter, which is required by forms filed with the SEC. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityRegistrantName |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionThe Tax Identification Number (TIN), also known as an Employer Identification Number (EIN), is a unique 9-digit value assigned by the IRS. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityTaxIdentificationNumber |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:employerIdItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionLocal phone number for entity.
| Name: |
dei_LocalPhoneNumber |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 13e
-Subsection 4c
| Name: |
dei_PreCommencementIssuerTenderOffer |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 14d
-Subsection 2b
| Name: |
dei_PreCommencementTenderOffer |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as soliciting material pursuant to Rule 14a-12 under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 14a
-Subsection 12
| Name: |
dei_SolicitingMaterial |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Securities Act
-Number 230
-Section 425
| Name: |
dei_WrittenCommunications |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
Trio Petroleum (AMEX:TPET)
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Trio Petroleum (AMEX:TPET)
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