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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): June 21, 2023
MamaMancini’s
Holdings, Inc.
(Exact
Name of Registrant as Specified in its Charter)
Nevada |
|
001-40597 |
|
27-0607116 |
(State
or Other Jurisdiction
of
Incorporation) |
|
(Commission
File
No.) |
|
(I.R.S.
Employer
Identification
No.) |
25
Branca Road, East Rutherford, NJ |
|
07073 |
(Address
of Principal Executive Offices) |
|
(Zip
Code) |
Registrant’s
telephone number, including area code: (201) 532-1212
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions (see General Instruction A.2. below):
☐ |
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|
|
☐ |
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
|
|
☐ |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
|
|
☐ |
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities
registered pursuant to Section 12(b) of the Act:
Title
of each class |
|
Trading
Symbol(s) |
|
Name
of each exchange on which registered |
Common
stock, $0.00001 par value per share |
|
MMMB |
|
NASDAQ |
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company ☐
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item
1.01 |
Entry
into a Material Definitive Agreement. |
On
June 21, 2023, MamaMancini’s Holdings, Inc. (the “Company”) entered into an underwriting agreement (the “Underwriting
Agreement”) with Lake Street Capital Markets, LLC (the “Underwriter”) and the selling stockholders named therein (collectively,
the “Selling Stockholders”), relating to the public offering (the “Offering”) of 6,281,085 shares (the “Firm
Shares”) of the Company’s common stock, par value $0.00001 per share (the “Common Stock”), by the Selling Stockholders
at a public offering price of $2.50 per share of Common Stock. In addition, the Selling Stockholders granted the Underwriter a 30-day
over-allotment option to purchase up to 942,163 additional shares of Common Stock (the “Option Shares” and, together with
the Firm Shares, the “Shares”) at the public offering price, less underwriting discounts and commissions (the “Over-Allotment
Option”). The Offering, including the full exercise of the Over-Allotment Option, closed on June 26, 2023.
The
Company did not sell any shares in the Offering. The Selling Stockholders received all net proceeds from the sale of the Shares pursuant
to the Underwriting Agreement. The Company did not receive any of the proceeds from the sale of the Shares by the Selling Stockholders.
The Selling Stockholders will bear the costs associated with the sale of such shares, including underwriting discounts and commissions.
The
Offering was made pursuant to the a registration statement on Form S-3 (File No. 333-272398), which was filed with the Securities and
Exchange Commission (the “SEC”) on June 2, 2023 and declared effective by the SEC on June 12, 2023, and related preliminary
prospectus supplement filed with the SEC on June 21, 2023. Copies of the final prospectus supplement and the accompanying prospectus
relating to the Offering may be obtained, when available, from Lake Street Capital Markets, LLC, Attention: Syndicate Department, 920
Second Avenue South, Suite 700, Minneapolis, Minnesota 55402, or by calling (612) 326-1305, or by emailing syndicate@lakestreetcm.com;
or at the SEC’s website at www.sec.gov.
The
Underwriting Agreement contains customary representations, warranties and covenants of the Company and the Selling Stockholders, indemnification
rights and obligations of the parties and termination provisions. Pursuant to the Underwriting Agreement, the Company agreed to indemnify
the Underwriters against certain specified types of liabilities, including liabilities under the Securities Act of 1933, as amended,
to contribute to payments the Underwriters may be required to make in respect of these liabilities and to reimburse the Underwriters
for certain expenses. The foregoing summary of the Underwriting Agreement is qualified in its entirety by reference to the full text
of the Underwriting Agreement, a copy of which is attached as Exhibit 1.1 to this Current Report on Form 8-K and is incorporated herein
by reference.
On
June 22, 2023, the Company issued a press release announcing the pricing of the Offering. A copy of the press release is attached as
Exhibit 99.1 to this Current Report on Form 8-K.
On
June 22, 2023, the Underwriter fully exercised the Over-Allotment Option. The Offering, including the full exercise of the Over-Allotment
Option, closed on June 26, 2023.
Item
9.01 |
Financial
Statements and Exhibits. |
(d)
Exhibits
SIGNATURES
Pursuant
to the requirements of the Securities and Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
|
MAMAMANCINI’S
HOLDINGS, INC. |
|
|
|
Date:
June 28, 2023 |
By: |
/s/
Adam L. Michaels |
|
Name: |
Adam
L. Michaels |
|
Title: |
Chief
Executive Officer |
EXHIBIT
1.1
6,281,085
Shares
MamaMancini’s
Holdings, Inc.
Common
Stock, par value $0.00001 per share
UNDERWRITING
AGREEMENT
June
21, 2023
Lake
Street Capital Markets, LLC
920
Second Avenue South, Suite 700
Minneapolis,
Minnesota 55402
Ladies
and Gentlemen:
The
undersigned, MamaMancini’s Holdings, Inc., a Nevada corporation (collectively with its subsidiaries and affiliates, including,
without limitation, all entities disclosed or described in the Registration Statement (as defined below) as being subsidiaries or affiliates
of MamaMancini’s Holdings, Inc., the “Company”) and those certain stockholders of the Company, Carl T.
Wolf, an individual (“Mr. Wolf”) and the sole trustee of the Wolf 2023 Family Trust (the “Trust”
and, together with Mr. Wolf, the “Selling Stockholders”) each hereby confirm their agreement
regarding Lake Street Capital Markets, LLC’s (the “Underwriter”) proposal to sell an aggregate of 6,281,085
shares (comprised of up to 3,617,905 shares held directly by Mr. Wolf and 2,663,180 shares held by the Trust) (the “Firm
Shares”) of Common Stock, par value $0.00001 per share (the “Common Stock”) of the Company. The
Company and the Selling Stockholders have also granted to the Underwriter an option to purchase up to 942,163 additional shares of Common
Stock on the terms and for the purposes set forth in Section 4 hereof (the “Option Shares”). The Firm Shares
and any Option Shares purchased pursuant to this Underwriting Agreement (this “Agreement”) are herein collectively
called the “Shares.”
The
Company, the Selling Stockholders and the Underwriter hereby confirm their agreement with respect to the sale of the Shares by the Selling
Stockholders to the Underwriter as follows:
1.
Registration Statement and Prospectus. The Company has prepared and filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-3 (File No. 333-272398) under the Securities Act of 1933,
as amended (the “Securities Act” or the “Act”), and the rules and regulations (the
“Rules and Regulations”) of the Commission thereunder, and such amendments to such registration statement as
may have been required to the date of this Agreement. Such registration statement has been declared effective by the Commission. Each
part of such registration statement, including the amendments, exhibits and any schedules thereto, the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Securities Act and the documents and information otherwise deemed to be a part thereof
or included therein by Rule 430B under the Securities Act (the “Rule 430B Information”) or otherwise pursuant
to the Rules and Regulations, as of the time the Registration Statement became effective, is herein called the “Registration
Statement.” Any registration statement filed by the Company pursuant to Rule 462(b) under the Securities Act is called
the “Rule 462(b) Registration Statement” and, from and after the date and time of filing of the Rule 462(b)
Registration Statement, the term “Registration Statement” shall include the Rule 462(b) Registration Statement.
The
prospectus in the form in which it has most recently been filed with the Commission on or prior to the date of this Agreement is herein
called the “Base Prospectus.” Each preliminary prospectus supplement to the Base Prospectus (including the
Base Prospectus as so supplemented), that describes the Shares and the offering thereof, that omitted the Rule 430B Information and that
was used prior to the filing of the final prospectus supplement referred to in the following sentence is herein called a “Preliminary
Prospectus.” Promptly after execution and delivery of this Agreement, the Company will prepare and file with the Commission
a final prospectus supplement to the Base Prospectus relating to the Shares and the offering thereof in accordance with the provisions
of Rule 430B and Rule 424(b) of the Rules and Regulations. Such final supplemental form of prospectus (including the Base Prospectus
as so supplemented), in the form filed with the Commission pursuant to Rule 424(b), is herein called the “Prospectus.”
Any reference herein to the Base Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act as of the date of such prospectus.
For
purposes of this Agreement, all references to the Registration Statement, the Rule 462(b) Registration Statement, the Base Prospectus,
any Preliminary Prospectus, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy
filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System or any successor system thereto (“EDGAR”).
All references in this Agreement to financial statements and schedules and other information which is “contained,” “included”
or “stated” in the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Prospectus (or other references
of like import) shall be deemed to mean and include all such financial statements and schedules and other information which is incorporated
by reference in or otherwise deemed by the Rules and Regulations to be a part of or included in the Registration Statement, the Base
Prospectus, any Preliminary Prospectus or the Prospectus, as the case may be; and all references in this Agreement to amendments or supplements
to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to mean and include
the subsequent filing of any document under the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
which is incorporated by reference therein or otherwise deemed by the Rules and Regulations to be a part thereof.
2.
Representations and Warranties of the Company.
(a)
Representations and Warranties of the Company. The Company represents and warrants to, and agrees with, the Underwriter
as follows:
(i)
Registration Statement and Prospectuses. No order preventing or suspending the use of the Registration Statement, any Preliminary
Prospectus or the Prospectus (or any supplement thereto) has been issued by the Commission and no proceeding for that purpose has been
initiated or is pending or, to the knowledge of the Company, threatened by the Commission. As of the time each part of the Registration
Statement became or becomes effective (including each deemed effective date with respect to the Underwriter pursuant to Rule 430B or
otherwise under the Securities Act), such part conformed or will conform in all material respects to the requirements of the Act and
the Rules and Regulations. Upon the filing or first use within the meaning of the Rules and Regulations, each Preliminary Prospectus
and the Prospectus (or any supplement to either) conformed or will conform in all material respects to the requirements of the Act and
the Rules and Regulations. The Registration Statement has become effective under the Securities Act and the Company, as of the date of
this Agreement, has not filed a post-effective amendment to the Registration Statement. The Company has complied to the Commission’s
satisfaction with all requests of the Commission for additional or supplemental information. No stop order suspending the effectiveness
of the Registration Statement or any part thereof is in effect and no proceedings for such purpose have been instituted or are pending
or, to the knowledge of the Company, are threatened by the Commission.
(ii)
Accurate Disclosure. Each Preliminary Prospectus, at the time of filing thereof or the time of first use within the meaning
of the Rules and Regulations, did not contain an untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Neither the Registration Statement nor any amendment thereto, at the effective time of each part thereof, at the First Closing Date (as
defined below) or at the Second Closing Date (as defined below), contained, contains or will contain an untrue statement of a material
fact or omitted, omits or will omit to state a material fact required to be stated therein or necessary to make the statements therein
not misleading. As of the Time of Sale (as defined below), neither (A) the Time of Sale Disclosure Package (as defined below) nor (B)
any issuer free writing prospectus (as defined below), when considered together with the Time of Sale Disclosure Package, contained an
untrue statement of a material fact or omitted 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. Neither the Prospectus nor any supplement thereto, as of its issue date,
at the time of any filing with the Commission pursuant to Rule 424(b) of the Rules and Regulations, at the First Closing Date or at the
Second Closing Date, contained, contains or will contain an untrue statement of a material fact or omitted, omits or will omit to state
a material fact 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 in this Section 2(a)(ii) shall not apply to statements in or omissions from any Preliminary
Prospectus, the Registration Statement (or any amendment thereto), the Time of Sale Disclosure Package or the Prospectus (or any supplement
thereto) made in reliance upon, and in conformity with, written information furnished to the Company by the Underwriter, or by the Underwriter
through Akerman LLP, specifically for use in the preparation of such document, it being understood and agreed that the only such information
furnished by the Underwriter consists of the information described as such in Section 7(e).
Each
reference to an “issuer free writing prospectus” herein means an issuer free writing prospectus as defined
in Rule 405, and as referenced in Rule 433 of the Rules and Regulations.
“Time
of Sale Disclosure Package” means the Preliminary Prospectus dated June 2, 2023, any free writing prospectus set forth
on Schedule I and the information on Schedule II, all considered together.
Each
reference to a “free writing prospectus” herein means a free writing prospectus as defined in Rule 405 of the
Rules and Regulations.
“Time
of Sale” means 4:30pm (Eastern time) on the date of this Agreement.
(iii)
Issuer Free Writing Prospectuses. (A) Each issuer free writing prospectus does not include any information that conflicts
with the information contained in the Registration Statement, any Preliminary Prospectus or the Prospectus. The foregoing sentence does
not apply to statements in or omissions from any issuer free writing prospectus based upon and in conformity with written information
furnished to the Company by the Underwriter or by the Underwriter through Akerman LLP specifically for use therein, it being understood
and agreed that the only such information furnished by the Underwriter consists of the information described as such in Section 7(e).
(B) (1) At the earliest time after the filing of the Registration Statement that the Company or another offering participant made a bona
fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the Shares and (2) at the date hereof, the Company
was not and is not an “ineligible issuer,” as defined in Rule 405 under the Securities Act, including the Company or any
subsidiary in the preceding three years not having been convicted of a felony or misdemeanor or having been made the subject of a judicial
or administrative decree or order as described in Rule 405 of the Rules and Regulations (without taking account of any determination
by the Commission pursuant to Rule 405 of the Rules and Regulations that it is not necessary that the Company be considered an ineligible
issuer), nor an “excluded issuer” as defined in Rule 164 under the Securities Act. (C) Each issuer free writing prospectus
satisfied, as of its issue date and at all subsequent times to the Time of Sale, all other conditions to use thereof as set forth in
Rules 164 and 433 under the Securities Act.
(iv)
No Other Offering Materials. The Company has not distributed and will not distribute any prospectus or other offering material
in connection with the offering and sale of the Shares other than any Preliminary Prospectus, the Time of Sale Disclosure Package or
the Prospectus or other materials permitted by the Act to be distributed by the Company; provided, however, that, except as set
forth on Schedule II, the Company has not made and will not make any offer relating to the Shares that would constitute a free writing
prospectus, except in accordance with the provisions of Section 5(a)(xii) of this Agreement.
(v)
Financial Statements. The financial statements of the Company, together with the related notes, set forth or incorporated
by reference in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus comply in all material respects with
the requirements of the Securities Act and the Exchange Act and fairly present the financial condition of the Company and its consolidated
subsidiaries as of the dates indicated and the results of operations and changes in cash flows for the periods therein specified in conformity
with generally accepted accounting principles in the United States consistently applied throughout the periods involved; the supporting
schedules included in the Registration Statement fairly present the information required to be stated therein; all non-GAAP financial
information included in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus complies in all material respects
with the requirements of Regulation G and Item 10 of Regulation S-K under the Act; and, except as disclosed in the Time of Sale Disclosure
Package and the Prospectus, there are no material off-balance sheet arrangements (as defined in Regulation S-K under the Act, Item 303(a)(4)(ii))
or any other relationships with unconsolidated entities or other persons, that may have a material current or, to the Company’s
knowledge, material future effect on the Company’s financial condition, results of operations, liquidity, capital expenditures,
capital resources or significant components of revenue or expenses. No other financial statements or schedules are required to be included
in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus. To the Company’s knowledge, Rosenberg Rich
Baker Berman P.A., which has expressed its opinion with respect to the audited financial statements and schedules filed as a part of
the Registration Statement and included in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus, is (x)
an independent public accounting firm within the meaning of the Act and the Rules and Regulations, (y) a registered public accounting
firm (as defined in Section 2(a)(12) of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”)) and (z)
not in violation of the auditor independence requirements of the Sarbanes-Oxley Act.
(vi)
Organization and Good Standing. Each of the Company and its subsidiaries has been duly organized and is validly existing
as a corporation in good standing under the laws of its jurisdiction of incorporation. Each of the Company and its subsidiaries has full
corporate power and authority to own its properties and conduct its business as currently being carried on and as described in the Registration
Statement, the Time of Sale Disclosure Package and the Prospectus, and is duly qualified to do business as a foreign corporation in good
standing in each jurisdiction in which it owns or leases real property or in which the conduct of its business makes such qualification
necessary and in which the failure to so qualify would have a material adverse effect upon the business, prospects, management, properties,
operations, condition (financial or otherwise), earnings, financial position or results of operations of the Company and its subsidiaries,
taken as a whole (“Material Adverse Effect”).
(vii)
Absence of Certain Events. Except as contemplated in the Time of Sale Disclosure Package and in the Prospectus, subsequent
to the respective dates as of which information is given in the Time of Sale Disclosure Package and the Prospectus, neither the Company
nor any of its subsidiaries has incurred any material liabilities or obligations, direct or contingent, or entered into any material
transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock; and there has
not been any change in the capital stock (other than a change in the number of outstanding shares of Common Stock due to the issuance
of shares upon the exercise or settlement of outstanding options, restricted share units or warrants or conversion of convertible securities
or due to the cancellation or redemption of shares under existing equity incentive plans), or any material change in the short-term or
long-term debt (other than as a result of the conversion of convertible securities), or any issuance of options, warrants, convertible
securities or other rights to purchase the capital stock of the Company or any of its subsidiaries, or any material adverse change in
the general affairs, condition (financial or otherwise), business, prospects, management, properties, operations, earnings, financial
position or results of operations of the Company and its subsidiaries, taken as a whole (“Material Adverse Change”)
or any development which could reasonably be expected to result in any Material Adverse Change.
(viii)
Absence of Proceedings. Except as set forth in the Time of Sale Disclosure Package and in the Prospectus, there is not
pending or, to the knowledge of the Company, threatened or contemplated, any action, suit or proceeding (a) to which the Company or any
of its subsidiaries is a party or (b) which has as the subject thereof any officer or director of the Company or any subsidiary, any
employee benefit plan sponsored by the Company or any subsidiary or any property or assets owned or leased by the Company or any subsidiary
before or by any court or Governmental Authority (as defined below), or any arbitrator, which, individually or in the aggregate, would
reasonably be expected to have a Material Adverse Effect. There are no current or, to the knowledge of the Company, pending, legal, governmental
or regulatory actions, suits or proceedings (x) to which the Company or any of its subsidiaries is subject or (y) which has as the subject
thereof any officer or director of the Company or any subsidiary, any employee plan sponsored by the Company or any subsidiary or any
property or assets owned or leased by the Company or any subsidiary, that are required to be described in the Registration Statement,
Time of Sale Disclosure Package and Prospectus by the Act or by the Rules and Regulations and that have not been so described.
(ix)
Disclosure of Legal Matters. There are no statutes, regulations, contracts or documents that are required to be described
in the Registration Statement, in the Time of Sale Disclosure Package and in the Prospectus or required to be filed as exhibits to the
Registration Statement by the Securities Act or by the Rules and Regulations that have not been so described or filed.
(x)
Authorization; No Conflicts; Authority. This Agreement has been duly authorized, executed and delivered by the Company,
and constitutes a valid, legal and binding obligation of the Company, enforceable 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 or similar laws affecting the rights of creditors generally and subject to general principles of equity. The execution,
delivery and performance of this Agreement and the consummation of the transactions herein contemplated will not (A) conflict with or
result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to any indenture, mortgage,
deed of trust, loan agreement or other material agreement or instrument to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries
is subject, (B) result in any violation of the provisions of the Company’s charter or by-laws or (C) result in the violation of
any law or statute or any judgment, order, rule, regulation or decree of any court or arbitrator or federal, state, local or foreign
governmental agency or regulatory authority having jurisdiction over the Company or any of its subsidiaries or any of their properties
or assets (each, a “Governmental Authority”), except in the case of clauses (A) and (C) as would not result
in a Material Adverse Effect. No consent, approval, authorization or order of, or registration or filing with any Governmental Authority
is required for the execution, delivery and performance of this Agreement or for the consummation of the transactions contemplated hereby,
including the issuance or sale of the Shares by the Company, except such as may be required under the Act, the rules of the Financial
Industry Regulatory Authority (“FINRA”), The Nasdaq Capital Market or state securities or blue sky laws; and
the Company has full power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, including
the authorization, issuance and sale of the Shares as contemplated by this Agreement.
(xi)
Shares. The Shares are duly authorized and validly issued, fully paid and nonassessable, free and clear of all liens imposed
by the Company. The holder of the Shares will not be subject to personal liability by reason of being such holders. The Shares are not
and will not be subject to the preemptive rights of any holders of any security of the Company or similar contractual rights granted
by the Company. The Shares conform in all material respects to all statements with respect thereto contained in the Registration Statement.
(xii)
Capitalization; Registration Rights. All of the issued and outstanding shares of capital stock of the Company are duly
authorized and validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state and foreign securities
laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that
have not been waived in writing (a copy of which has been delivered to counsel for the Underwriter), and the holders thereof are not
subject to personal liability by reason of being such holders; the Shares which may be sold hereunder by the Company have been duly authorized
and, when issued, delivered and paid for in accordance with the terms of this Agreement, will have been validly issued and will be fully
paid and nonassessable, and the holders thereof will not be subject to personal liability by reason of being such holders; and the capital
stock of the Company, including the Shares to be purchased pursuant to this Agreement, conforms to the description thereof in the Registration
Statement, in the Time of Sale Disclosure Package and in the Prospectus. Except as otherwise stated in the Registration Statement, in
the Time of Sale Disclosure Package and in the Prospectus, (A) there are no preemptive rights or other rights to subscribe for or to
purchase, or any restriction upon the voting or transfer of, any shares of Common Stock pursuant to the Company’s charter, by-laws
or any agreement or other instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound; and (B) neither the filing of the Registration Statement nor the offering or sale of the Shares as contemplated
by this Agreement gives rise to any rights for or relating to the registration of any shares of Common Stock or other securities of the
Company (collectively “Registration Rights”). All of the issued and outstanding shares of capital stock of
each of the Company’s subsidiaries have been duly and validly authorized and issued and are fully paid and nonassessable, and,
except as otherwise described in the Registration Statement, in the Time of Sale Disclosure Package and in the Prospectus, the Company
owns of record and beneficially, free and clear of any security interests, claims, liens, proxies, equities or other encumbrances, all
of the issued and outstanding shares of such stock. The Company has an authorized and outstanding capitalization as set forth in the
Registration Statement, in the Time of Sale Disclosure Package and in the Prospectus.
(xiii)
Stock Options. Except as described in the Registration Statement, in the Time of Sale Disclosure Package and in the Prospectus,
there are no options, warrants, agreements, contracts or other rights in existence to purchase or acquire from the Company or any subsidiary
of the Company any shares of the capital stock of the Company or any subsidiary of the Company. The description of the Company’s
stock option, stock bonus and other stock plans or arrangements (the “Company Stock Plans”), and the options
or other rights granted thereunder (collectively, the “Awards”), set forth in the Time of Sale Disclosure Package
and the Prospectus presents accurately and fairly in all material respects the information required to be shown with respect to such
plans, arrangements and Awards. Each grant of an Award (A) was duly authorized no later than the date on which the grant of such Award
was by its terms to be effective by all necessary corporate action, including, as applicable, approval by the Board of Directors of the
Company (or a duly constituted and authorized committee thereof) and any required stockholder approval by the necessary number of votes
or written consents, and the award agreement governing such grant (if any) was duly executed and delivered by each party thereto and
(B) was made in accordance with the terms of the applicable Company Stock Plan, and all applicable laws and regulatory rules or requirements,
including all applicable federal securities laws.
(xiv)
Compliance with Laws. The Company and each of its subsidiaries holds, and is operating in compliance in all material respects
with, all franchises, grants, authorizations, licenses, permits, easements, consents, certificates and orders of any Governmental Authority
or self-regulatory body required for the conduct of its business and all such franchises, grants, authorizations, licenses, permits,
easements, consents, certifications and orders are valid and in full force and effect; and neither the Company nor any of its subsidiaries
has received notice of any revocation or modification of any material franchise, grant, authorization, license, permit, easement, consent,
certification or order or has reason to believe that any such material franchise, grant, authorization, license, permit, easement, consent,
certification or order will not be renewed in the ordinary course; and the Company and each of its subsidiaries is in compliance in all
material respects with all applicable federal, state, local and foreign laws, regulations, orders and decrees.
(xv)
Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of,
give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority
or other Person in connection with the execution, delivery and performance by the Company of its obligations hereunder, other than: (i)
the filing with the Commission of the Prospectus, (ii) any additional application to The Nasdaq Capital Market regarding the Shares for
trading thereon in the time and manner required thereby, and (iii) such filings as are required to be made under applicable state securities
laws.
(xvi)
Ownership of Assets. The Company and its subsidiaries have good and marketable title to, or have valid rights to lease
or otherwise use, all property (whether real or personal) described in the Registration Statement, in the Time of Sale Disclosure Package
and in the Prospectus as being owned, leased or used by them, in each case free and clear of all liens, claims, security interests, other
encumbrances or defects except such as are described in the Registration Statement, in the Time of Sale Disclosure Package and in the
Prospectus. The property held under lease by the Company and its subsidiaries is held by them under valid, subsisting and enforceable
leases with only such exceptions with respect to any particular lease as do not interfere in any material respect with the conduct of
the business of the Company or its subsidiaries.
(xvii)
Intellectual Property.
(A)
The Company and each of its subsidiaries owns or has the right to use pursuant to a valid and enforceable written license or other legally
enforceable right, all Intellectual Property (as defined below) necessary for the conduct of the Company’s and its subsidiaries’
businesses as now conducted or as described in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus to
be conducted (the “Company IP”). “Intellectual Property” means all patents, patent
applications, trade and service marks, trade and service mark registrations, trade names, copyrights, licenses, inventions, trade secrets,
domain names, technology, know-how and other intellectual property.
(B)
To the knowledge of the Company, there is no infringement, misappropriation or violation by third parties of any Company IP. There is
no pending or, to the knowledge of the Company, threatened, action, suit, proceeding or claim by others challenging the Company’s
or its subsidiaries’ rights in or to any Company IP, and the Company is unaware of any facts which would form a reasonable basis
for any such claim. The Intellectual Property owned by the Company and its subsidiaries, and to the knowledge of the Company, the Intellectual
Property licensed to the Company and its subsidiaries, has not been adjudged invalid or unenforceable, in whole or in part, and there
is no pending or, to the knowledge of the Company, threatened action, suit, proceeding or claim by others challenging the validity or
scope of any Company IP, and the Company is unaware of any facts which would form a reasonable basis for any such claim. There is no
pending or, to the knowledge of the Company, threatened action, suit, proceeding or claim by others that the Company or its subsidiaries
infringe, misappropriate or otherwise violate any Intellectual Property or other proprietary rights of others, and neither the Company
nor any of its subsidiaries has received any written notice of such claim and the Company is unaware of any other fact which would form
a reasonable basis for any such claim.
(C)
To the Company’s knowledge, no employee of the Company or any of its subsidiaries is in or has ever been in material violation
of any term of any employment contract, patent disclosure agreement, invention assignment agreement, non-competition agreement, non-solicitation
agreement, nondisclosure agreement or any restrictive covenant to or with a former employer where the basis of such violation relates
to such employee’s employment with the Company or any of its subsidiaries or actions undertaken by the employee while employed
with the Company or any of its subsidiaries.
(D)
The Company and its subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality and value of all of
their material Intellectual Property.
(E)
All patent applications owned by the Company or its subsidiaries and filed with the U.S. Patent and Trademark Office (the “PTO”)
or any foreign or international patent authority that have resulted in patents or currently pending applications that describe inventions
necessary to conduct the business of the Company or its subsidiaries as now conducted or as described in the Registration Statement,
the Time of Sale Disclosure Package and the Prospectus to be conducted (collectively, the “Company Patent Applications”)
have been or were duly and properly filed.
(F)
The Company and its subsidiaries have complied with their duty of candor and disclosure to the PTO for the Company Patent Applications.
To the Company’s knowledge, there are no facts required to be disclosed to the PTO that were not disclosed to the PTO and which
would preclude the grant of a patent for the Company Patent Applications. The Company has no knowledge of any facts which would preclude
it or its applicable subsidiary from having clear title to the Company Patent Applications that have been identified by the Company as
being exclusively owned by the Company or one of its subsidiaries.
(xviii) Privacy
and Data Protection. The Company has operated its business in a manner compliant in
all material respects with all United States federal, state, local and non-United States privacy,
data security and data protection laws and regulations applicable to the Company’s collection, use, transfer, protection,
disposal, disclosure, handling, storage and analysis of personal data. The Company has been and is in compliance in all material
respects with internal policies and procedures designed to ensure the integrity and security of the data collected, handled or
stored in connection with its business. The Company has taken commercially reasonable steps to maintain the confidentiality of its
personally identifiable information, protected health information, consumer information and other confidential information of the
Company and any third parties in its possession (“Sensitive Company Data”). The tangible or digital
information technology systems (including computers, screens, servers, workstations, routers, hubs, switches, networks, data
communications lines, technical data and hardware), software and telecommunications systems used or held for use by the Company (the
“Company IT Assets”) are in all material respects adequate and operational for, in accordance with their
documentation and functional specifications, the business of the Company as now operated and as currently proposed to be conducted
as described in the Registration Statement, in the Time of Sale Disclosure Package and in the Prospectus.
The Company has used commercially reasonable efforts to establish, and has established, commercially reasonable disaster recovery
and security plans, procedures and facilities for the business consistent with industry standards and practices in all material
respects, including, without limitation, for the Company IT Assets and data held or used by or for the Company. To the
Company’s knowledge, the Company has not suffered or incurred any security breaches, compromises or incidents with respect to
any Company IT Asset or Sensitive Company Data, except where such breaches, compromises or incidents would not reasonably be
expected to, singly or in the aggregate, result in a Material Adverse Effect; and there has been no unauthorized or illegal use of
or access to any Company IT Asset or Sensitive Company Data by any unauthorized third party, except where such unauthorized or
illegal use or access would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect. The
Company has not been required to notify any individual of any information security breach, compromise or incident involving
Sensitive Company Data.
(xix)
No Violations or Defaults. Neither the Company nor any of its subsidiaries is in violation of its respective charter, by-laws
or other organizational documents, or in breach of or otherwise in default, and no event has occurred which, with notice or lapse of
time or both, would constitute such a default in the performance of any obligation, agreement or condition contained in any bond, debenture,
note, indenture, loan agreement or any other contract, lease or other instrument to which it is subject or by which any of them may be
bound, or to which any of the property or assets of the Company or any of its subsidiaries is subject, except as would not have a Material
Adverse Effect.
(xx)
Taxes. The Company and its subsidiaries have timely filed all federal, state, local and foreign income and franchise tax
returns required to be filed and are not in material default in the payment of any taxes which were payable pursuant to said returns
or any assessments with respect thereto, other than any which the Company or any of its subsidiaries is contesting in good faith. There
is no pending dispute with any taxing authority relating to any of such returns, and the Company has no knowledge of any proposed liability
for any tax to be imposed upon the properties or assets of the Company for which there is not an adequate reserve reflected in the Company’s
financial statements included in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus.
(xxi)
Exchange Listing and Exchange Act Registration. The Common Stock is registered pursuant to Section 12(b) of the Exchange
Act and is included or approved for listing on The Nasdaq Capital Market and the Company has not taken any action designed to, or likely
to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from The
Nasdaq Capital Market, and the Company has not received any notification that the Commission or The Nasdaq Capital Market is contemplating
terminating such registration or listing. The Company has complied in all material respects with the applicable requirements of The Nasdaq
Capital Market for maintenance of inclusion of the Common Stock thereon. Except as previously disclosed to counsel for the Underwriter
or as set forth in the Time of Sale Disclosure Package and the Prospectus, to the knowledge of the Company, no beneficial owners of the
Company’s capital stock who, together with their associated persons and affiliates, hold in the aggregate 10% or more of such capital
stock, have any direct or indirect association or affiliate with a FINRA member.
(xxii)
Ownership of Other Entities. Other than the subsidiaries of the Company listed in Exhibit 21.1 to the Company’s Annual
Report on Form 10-K for the fiscal year ended January 31, 2023, the Company, directly or indirectly, owns no capital stock or other equity
or ownership or proprietary interest in any corporation, partnership, association, trust or other entity.
(xxiii)
Internal Controls. The Company and its subsidiaries maintain a system of internal accounting controls sufficient to provide
reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting
principles in the United States and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with
management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets
at reasonable intervals and appropriate action is taken with respect to any differences. Except as disclosed in the Registration Statement,
in the Time of Sale Disclosure Package and in the Prospectus, the Company’s internal control over financial reporting is effective
and none of the Company, its Board of Directors and audit committee is aware of any “significant deficiencies” or “material
weaknesses” (each as defined by the Public Company Accounting Oversight Board) in its internal control over financial reporting,
or any fraud, whether or not material, that involves management or other employees of the Company and its subsidiaries who have a significant
role in the Company’s internal controls; and since the end of the latest audited fiscal year, there has been no change in the Company’s
internal control over financial reporting (whether or not remediated) that has materially affected, or is reasonably likely to materially
affect, the Company’s internal control over financial reporting. The Company’s Board of Directors has, subject to the exceptions,
cure periods and the phase in periods specified in the applicable stock exchange rules (“Exchange Rules”),
validly appointed an audit committee to oversee internal accounting controls whose composition satisfies the applicable requirements
of the Exchange Rules and the Company’s Board of Directors and/or the audit committee has adopted a charter that satisfies the
requirements of the Exchange Rules.
(xxiv)
No Brokers or Finders. Other than as contemplated by this Agreement, the Company has not incurred any liability for any
finder’s or broker’s fee or agent’s commission in connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby. Except as set forth in the Preliminary Prospectus, no brokerage or finder’s
fees or commissions are or will be payable by the Company, any subsidiary or affiliate of the Company to any broker, financial advisor
or consultant, finder, placement agent, investment banker, bank or other Person with respect to the transactions contemplated by the
Transaction Documents. To the Company’s knowledge, there are no other arrangements, agreements or understandings of the Company
or, to the Company’s knowledge, any of its stockholders that may affect the Underwriter’s compensation, as determined by
FINRA. Except as set forth in the Registration Statement, the Company has not made any direct or indirect payments (in cash, securities
or otherwise) in connection with the offering and sale of the Shares to: (i) any person, as a finder’s fee, consulting fee or otherwise,
in consideration of such person raising capital for the Company or introducing to the Company persons who raised or provided capital
to the Company; (ii) any FINRA member; or (iii) any person or entity that has any direct or indirect affiliation or association with
any FINRA member, within the twelve months prior to the date hereof.
(xxv)
Insurance. The Company and each of its subsidiaries carries, or is covered by, insurance from reputable insurers in such
amounts and covering such risks as is adequate for the conduct of its business and the value of its properties and the properties of
its subsidiaries and as is customary for companies engaged in similar businesses in similar industries; all policies of insurance and
any fidelity or surety bonds insuring the Company or any of its subsidiaries or its business, assets, employees, officers and directors
are in full force and effect; the Company and its subsidiaries are in compliance with the terms of such policies and instruments in all
material respects; there are no claims by the Company or any of its subsidiaries under any such policy or instrument as to which any
insurance company is denying liability or defending under a reservation of rights clause; neither the Company nor any of its subsidiaries
has been refused any insurance coverage sought or applied for; and neither the Company nor any of its subsidiaries has reason to believe
that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost that would not have a Material Adverse Effect.
(xxvi)
Investment Company Act. The Company is not and, after giving effect to the offering and sale of the Shares, will not be
an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended.
(xxvii)
Eligibility to Use Form S-3. The conditions for use of Form S-3, in connection with the offer and sale of the Securities,
as set forth in the General Instructions thereto, have been satisfied.
(xxviii) Incorporated
Documents. The documents incorporated by reference in the Time of Sale Disclosure Package and in the Prospectus, when they
became effective or were filed with the Commission, as the case may be, conformed in all material respects to the requirements of
the Securities Act or the Exchange Act, as applicable, and were filed on a timely basis with the Commission and none of such
documents contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading; any further documents so filed and
incorporated by reference in the Time of Sale Disclosure Package or in the Prospectus, when such documents are filed with the
Commission, will conform in all material respects to the requirements of the Exchange Act, and will not contain 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
under which they were made, not misleading.
(xxix)
FDA. As to each product subject to the jurisdiction of the U.S. Food and Drug Administration (“FDA”)
under the Federal Food, Drug and Cosmetic Act, as amended, and the regulations thereunder (“FDCA”) that is
manufactured, packaged, labeled, tested, distributed, sold, and/or marketed by the Company or any of its subsidiaries (each such product,
a “Product”), such Product is being manufactured, packaged, labeled, tested, distributed, sold and/or marketed
by the Company in compliance with all applicable requirements under FDCA and similar laws, rules and regulations relating to registration,
investigational use, premarket clearance, licensure, or application approval, good manufacturing practices, good laboratory practices,
product listing, quotas, labeling, advertising, record keeping and filing of reports, except where the failure to be in compliance would
not result in a Material Adverse Effect. The properties, business and operations of the Company have been and are being conducted in
all material respects in accordance with all applicable laws, rules and regulations of the FDA. Other than as disclosed in the Registration
Statement, the Company has not been informed by the FDA that the FDA will prohibit the marketing, sale, license or use in the United
States of any Product proposed to be developed, produced or marketed by the Company nor has the FDA expressed any concern as to approving
or clearing for marketing any Product being developed or proposed to be developed by the Company.
(xxx)
Sarbanes-Oxley Act. The Company is in compliance with all applicable provisions of the Sarbanes-Oxley Act of 2002 and the
rules and regulations of the Commission thereunder.
(xxxi)
Disclosure Controls. The Company has established and maintains disclosure controls and procedures (as defined in Rules
13a-14 and 15d-14 under the Exchange Act) and such controls and procedures are effective in ensuring that material information relating
to the Company, including its subsidiaries, is made known to the principal executive officer and the principal financial officer. The
Company has utilized such controls and procedures in preparing and evaluating the disclosures in the Registration Statement, in the Time
of Sale Disclosure Package and in the Prospectus.
(xxxii)
Anti-Bribery and Anti-Money Laundering Laws. Each of the Company, its subsidiaries, its affiliates and any of their respective
officers, directors, supervisors, managers, agents or employees, has not violated, its participation in the offering will not violate,
and the Company and each of its subsidiaries has instituted and maintains policies and procedures designed to ensure continued compliance
with, each of the following laws: anti-bribery laws, including but not limited to, any applicable law, rule, or regulation of any locality,
including but not limited to any law, rule, or regulation promulgated to implement the OECD Convention on Combating Bribery of Foreign
Public Officials in International Business Transactions, signed December 17, 1997, including the U.S. Foreign Corrupt Practices Act of
1977, as amended, the U.K. Bribery Act 2010, or any other law, rule or regulation of similar purposes and scope, or anti-money laundering
laws, including but not limited to, applicable federal, state, international, foreign or other laws, regulations or government guidance
regarding anti-money laundering, including, without limitation, Title 18 U.S. Code Section 1956 and 1957, the Patriot Act, the Bank Secrecy
Act, and international anti-money laundering principles or procedures by an intergovernmental group or organization, such as the Financial
Action Task Force on Money Laundering, of which the United States is a member and with which designation the United States representative
to the group or organization continues to concur, all as amended, and any executive order, directive, or regulation pursuant to the authority
of any of the foregoing, or any orders or licenses issued thereunder.
(xxxiii)
OFAC.
(A)
Neither the Company nor any of its subsidiaries, nor, any of their directors, officers or employees, nor, to the Company’s knowledge,
any agent, affiliate or representative of the Company or its subsidiaries, is an individual or entity that is, or is owned or controlled
by an individual or entity that is:
(1)
the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control, the
United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority (collectively,
“Sanctions”), nor
(2)
located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Cuba, Iran,
North Korea, Syria, Russia, the Crimea, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic,
the non-government controlled areas of the Zaporizhzhia and Kherson regions of Ukraine and any other Covered Region identified by Executive
Order 14065).
(B)
Neither the Company nor any of its subsidiaries will, directly or indirectly, use the proceeds of the offering, or lend, contribute or
otherwise make available such proceeds to any subsidiary, joint venture partner or other individual or entity:
(1)
to fund or facilitate any activities or business of or with any individual or entity or in any country or territory that, at the time
of such funding or facilitation, is the subject of Sanctions; or
(2)
in any other manner that will result in a violation of Sanctions by any individual or entity (including any individual or entity participating
in the offering, whether as underwriter, advisor, investor or otherwise).
(C)
For the past five years, neither the Company nor any of its subsidiaries has knowingly engaged in, and is not now knowingly engaged in,
any dealings or transactions with any individual or entity, or in any country or territory, that at the time of the dealing or transaction
is or was the subject of Sanctions.
(xxxiv)
Compliance with Environmental Laws. Except as disclosed in the Time of Sale Disclosure Package and the Prospectus, neither
the Company nor any of its subsidiaries is in violation of any statute, any rule, regulation, decision or order of any Governmental Authority
or any court, domestic or foreign, relating to the use, disposal or release of hazardous or toxic substances or relating to the protection
or restoration of the environment or human exposure to hazardous or toxic substances (collectively, “Environmental Laws”),
owns or operates any real property contaminated with any substance that is subject to any Environmental Laws, is liable for any off-site
disposal or contamination pursuant to any Environmental Laws, or is subject to any claim relating to any Environmental Laws, which violation,
contamination, liability or claim would, individually or in the aggregate, have a Material Adverse Effect; and the Company is not aware
of any pending investigation which might lead to such a claim nor is the Company or any of its subsidiaries anticipating incurring any
material capital expenditures relating to compliance with Environmental Laws.
(xxxv)
Compliance with Occupational Laws. The Company and each of its subsidiaries (A) is in compliance, in all material respects,
with any and all applicable foreign, federal, state and local laws, rules, regulations, treaties, statutes and codes promulgated by any
and all Governmental Authorities (including pursuant to the Occupational Health and Safety Act) relating to the protection of human health
and safety in the workplace (“Occupational Laws”); (B) has received all material permits, licenses or other
approvals required of it under applicable Occupational Laws to conduct its business as currently conducted; and (C) is in compliance,
in all material respects, with all terms and conditions of such permit, license or approval. No action, proceeding, revocation proceeding,
writ, injunction or claim is pending or, to the Company’s knowledge, threatened against the Company or any of its subsidiaries
relating to Occupational Laws, and the Company does not have knowledge of any facts, circumstances or developments relating to its operations
or cost accounting practices that could reasonably be expected to form the basis for or give rise to such actions, suits, investigations
or proceedings.
(xxxvi)
ERISA and Employee Benefits Matters. (A) To the knowledge of the Company, no “prohibited transaction” as defined
under Section 406 of ERISA or Section 4975 of the Code and not exempt under ERISA Section 408 and the regulations and published interpretations
by the United States Department of Labor thereunder has occurred with respect to any Employee Benefit Plan. At no time has the Company
or any ERISA Affiliate, maintained, sponsored, participated in, contributed to or has or had any liability or obligation in respect of
any Employee Benefit Plan subject to Part 3 of Subtitle B of Title I of ERISA, Title IV of ERISA, or Section 412 of the Code or any “multiemployer
plan” as defined in Section 3(37) of ERISA or any multiple employer plan for which the Company or any ERISA Affiliate has incurred
or could incur liability under Section 4063 or 4064 of ERISA. No Employee Benefit Plan provides or promises, or at any time provided
or promised, retiree health, life insurance, or other retiree welfare benefits except as may be required by the Consolidated Omnibus
Budget Reconciliation Act of 1985, as amended, or similar state law. Each Employee Benefit Plan is and has been operated in material
compliance with its terms and all applicable laws, including but not limited to ERISA and the Code and, to the knowledge of the Company,
no event has occurred (including a “reportable event” as such term is defined in Section 4043 of ERISA) and no condition
exists that would subject the Company or any ERISA Affiliate to any material tax, fine, lien, penalty or liability imposed by ERISA,
the Code or other applicable law. Each Employee Benefit Plan intended to be qualified under Code Section 401(a) is so qualified and has
a favorable determination or opinion letter from the IRS upon which it can rely, and any such determination or opinion letter remains
in effect and has not been revoked; to the knowledge of the Company, nothing has occurred since the date of any such determination
or opinion letter that is reasonably likely to adversely affect such qualification; (B) with respect to each Foreign Benefit Plan (as
defined below), such Foreign Benefit Plan (1) if intended to qualify for special tax treatment, meets, in all material respects, the
requirements for such treatment, and (2) if required to be funded, is funded to the extent required by applicable law, and with respect
to all other Foreign Benefit Plans, adequate reserves therefor have been established on the accounting statements of the applicable Company
or subsidiary; (C) neither the Company nor any of its subsidiaries has any obligations under any collective bargaining agreement with
any union and no organization efforts are underway with respect to employees of the Company or any of its subsidiaries. As used in this
Agreement, “Code” means the Internal Revenue Code of 1986, as amended; “Employee Benefit Plan”
means any “employee benefit plan” within the meaning of Section 3(3) of ERISA, including, without limitation, all
stock purchase, stock option, stock-based severance, employment, change-in-control, medical, disability, fringe benefit, bonus, incentive,
deferred compensation, employee loan and all other employee benefit plans, agreements, programs, policies or other arrangements, whether
or not subject to ERISA, under which (1) any current or former employee, director or independent contractor of the Company or its subsidiaries
has any present or future right to benefits and which are contributed to, sponsored by or maintained by the Company or any of its subsidiaries
or (2) the Company or any of its subsidiaries has had or has any present or future obligation or liability; “ERISA”
means the Employee Retirement Income Security Act of 1974, as amended; “ERISA Affiliate” means any
member of the Company’s controlled group as defined in Code Section 414(b), (c), (m) or (o); and “Foreign Benefit Plan”
means any Employee Benefit Plan established, maintained or contributed to outside of the United States of America or which covers
any employee working or residing outside of the United States.
(xxxvii)
U.S. Real Property Holding Corporation. The Company is not and, to the knowledge of the Company, has never been a U.S.
real property holding corporation within the meaning of Section 897 of the Internal Revenue Code of 1986, as amended, and the Company
shall so certify upon the Underwriter’s reasonable request.
(xxxviii)
Bank Holding Company Act. Neither the Company nor any of its subsidiaries or affiliates is subject to the Bank Holding
Company Act of 1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve
System (the “Federal Reserve”). Neither the Company nor any of its subsidiaries or affiliates owns or controls,
directly or indirectly, five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent
(25%) or more of the total equity of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither
the Company nor any of its subsidiaries or affiliates exercises a controlling influence over the management or policies of a bank or
any entity that is subject to the BHCA and to regulation by the Federal Reserve.
(xxxix)
D&O Questionnaires. To the Company’s knowledge, all information contained in the questionnaires that were most recently
completed by each of the Company’s directors and officers is true and correct in all respects and the Company has not become aware
of any information which would cause the information disclosed in such questionnaires become inaccurate and incorrect.
(xl) FINRA Affiliation. To the Company’s knowledge, no officer, director or any
beneficial owner of 5% or more of the Company’s unregistered securities has any direct or indirect affiliation or association with
any FINRA member (as determined in accordance with the rules and regulations of FINRA) that is participating in the Offering. The Company
will advise the Underwriter and Akerman LLP if it learns that any officer, director or owner of 5% or more of the Company’s outstanding
shares of Common Stock or Common Stock Equivalents is or becomes an affiliate or associated person of a FINRA member firm.
(xli)
Accountants. To the knowledge and belief of the Company, Rosenberg Rich Baker Berman P.A. (i) is an independent registered
public accounting firm as required by the Exchange Act. Other than services related to the Company’s tax compliance, Rosenberg
Rich Baker Berman & P.A. has not, during the periods covered by the financial statements included in the Prospectus, provided to
the Company any non-audit services, as such term is used in Section 10A(g) of the Exchange Act.
(xlii)
Solvency. Based on the consolidated financial condition of the Company as of the Closing Date, (i) the fair saleable value
of the Company’s assets exceeds the amount that will be required to be paid on or in respect of the Company’s existing debts
and other liabilities (including known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably
small capital to carry on its business as now conducted and as proposed to be conducted including its capital needs taking into account
the particular capital requirements of the business conducted by the Company, consolidated and projected capital requirements and capital
availability thereof, and (iii) the current cash flow of the Company, together with the proceeds the Company would receive, were it to
liquidate all of its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or
in respect of its liabilities when such amounts are required to be paid. The Company does not intend to incur debts beyond its ability
to pay such debts as they mature (taking into account the timing and amounts of cash to be payable on or in respect of its debt). The
Company has no knowledge of any facts or circumstances which lead it to believe that it will file for reorganization or liquidation under
the bankruptcy or reorganization laws of any jurisdiction within one year from the Closing Date. The SEC Reports sets forth as of the
date hereof all outstanding secured and unsecured Indebtedness of the Company or any Subsidiary, or for which the Company or any Subsidiary
has commitments
(xliii) Transactions
With Affiliates and Employees. Except as set forth in the Company’s reports filed with the Commission, none of the
officers or directors of the Company or any subsidiary and, to the knowledge of the Company, none of the employees of the Company or
any subsidiary is presently a party to any transaction with the Company or any subsidiary (other than for services as employees,
officers and directors), including any contract, agreement or other arrangement providing for the furnishing of services to or by,
providing for rental of real or personal property to or from, providing for the borrowing of money from or lending of money to or
otherwise requiring payments to or from, any officer, director or such employee or, to the knowledge of the Company, any entity in
which any officer, director, or any such employee has a substantial interest or is an officer, director, trustee, stockholder,
member or partner, in each case in excess of $120,000 other than for (i) payment of salary or consulting fees for services rendered,
(ii) reimbursement for expenses incurred on behalf of the Company and (iii) other employee benefits, including stock option
agreements under any stock option plan of the Company.
(xliv)
Labor Matters. No labor problem or dispute with the employees of the Company or any of its subsidiaries exists or is threatened
or imminent, and the Company is not aware of any existing or imminent labor disturbance by the employees of any of its or its subsidiaries’
principal suppliers, contractors or customers, that could have a Material Adverse Effect. None of the Company’s or its subsidiaries’
employees is a member of a union that relates to such employee’s relationship with the Company or such subsidiary, and neither
the Company nor any of its subsidiaries is a party to a collective bargaining agreement, and the Company and its subsidiaries believe
that their relationships with their employees are good. To the knowledge of the Company, no executive officer of the Company or any subsidiary,
is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary
information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third
party, and the continued employment of each such executive officer does not subject the Company or any of its subsidiaries to any liability
with respect to any of the foregoing matters. The Company and its subsidiaries are in compliance with all U.S. federal, state, local
and foreign laws and regulations relating to employment and employment practices, terms and conditions of employment and wages and hours,
except where the failure to be in compliance would not, individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect.
(xlv)
Restrictions on Subsidiary Payments to the Company. No subsidiary of the Company is currently prohibited, directly or indirectly,
from paying any dividends to the Company, from making any other distribution on such subsidiary’s capital stock, from repaying
to the Company any loans or advances to such subsidiary from the Company or from transferring any of such subsidiary’s property
or assets to the Company or any other subsidiary of the Company, except as provided by applicable state law or described in or contemplated
by the Time of Sale Disclosure Package and the Prospectus.
(xlvi)
Statistical Information. Any third-party statistical and market-related data included in the Registration Statement, the
Time of Sale Disclosure Package and the Prospectus are based on or derived from sources that the Company believes to be reasonably current
and reliable and accurate in all material respects.
(xlvii)
Absence of Manipulation. None of the Company nor any of its affiliates has taken or will take, directly or indirectly,
any action designed to or that might be reasonably expected to cause or result in stabilization or manipulation of the price of the Shares
to facilitate the sale or resale of the Shares.
(xlviii)
Application of Takeover Protections. The Company and its Board of Directors have taken all necessary action, if any, in
order to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights
agreement) or other similar anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents)
or the laws of its state of incorporation that is or could become applicable as a result of the Underwriter and the Company fulfilling
their obligations or exercising their rights under this Agreement.
(xlix)
No Integrated Offering. Neither the Company, nor any of its subsidiaries or affiliates, nor any Person acting on its or
their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under
circumstances that would cause this offering of the Shares to be integrated with prior offerings by the Company for purposes of any applicable
shareholder approval provisions of The Nasdaq Capital Market.
(l)
Board of Directors. The Company’s Board of Directors is comprised of the persons set forth in the Company’s
definitive proxy statement filed with the Commission on June 15, 2023, captioned “Proposal No. 1: Election of Directors”.
The qualifications of the persons serving as board members and the overall composition of the Board of Directors comply with the Sarbanes-Oxley
Act of 2002 and the rules promulgated thereunder applicable to the Company and the rules of The Nasdaq Capital Market. At least one member
of the Board of Directors qualifies as a “financial expert” as such term is defined under the Sarbanes-Oxley Act of 2002
and the rules promulgated thereunder and the rules of The Nasdaq Capital Market. In addition, at least a majority of the persons serving
on the Board of Directors qualify as “independent” as defined under the rules of The Nasdaq Capital Market.
(li)
Forward-looking Statements. No forward-looking statement (within the meaning of Section 27A of the Act and Section 21E
of the Exchange Act) contained in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus has been made or
reaffirmed without a reasonable basis or has been disclosed other than in good faith.
(c)
Effect of Certificates. Any certificate signed by any officer of the Company and delivered to the Underwriter or to counsel
for the Underwriter shall be deemed a representation and warranty by the Company to the Underwriter as to the matters covered thereby.
3.
Representations and Warranties of the Selling Stockholders
(a)
Representations and Warranties of the Selling Stockholders. The Selling Stockholders represent and warrant to, and agree
with, the Underwriter as follows:
(i)
Valid Title to Shares. The Selling Stockholders have, and immediately prior to the First Closing Date and the Second Closing
Date will have, good and valid title to the Securities on such date free and clear of all liens, encumbrances, equities or claims; and,
upon delivery of such Shares and payment therefor pursuant hereto, good and valid title to such Shares, free and clear of all liens,
encumbrances, equities or claims, will pass to the Underwriter;
(ii)
Absence of Further Requirements. No filing with, or consent, approval, authorization, order, registration, qualification
or decree of any arbitrator, court, governmental body, regulatory body, administrative agency or other authority, body or agency, domestic
or foreign, is necessary or required for the performance by the Selling Stockholder of its obligations hereunder, or in connection with
the sale and delivery of the Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as
have been already obtained or as may be required under the Securities Act and the applicable rules and regulations of the Commission
thereunder, the rules of The Nasdaq Capital Market, state securities laws or the rules of FINRA.
(iii)
Absence of Defaults and Conflicts. The execution and delivery of this Agreement and the sale and delivery of the Shares
to be sold by the Selling Stockholders and the consummation of the transactions contemplated herein and compliance by the Selling Stockholders
with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, (A) conflict
with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon the
Shares to be sold by the Selling Stockholders or any property or assets of the Selling Stockholders pursuant to any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, license, lease or other agreement or instrument to which the Selling Stockholders
are a party or by which the Selling Stockholders may be bound, or to which any of the property or assets of the Selling Stockholders
are subject, (B) result in any violation of the provisions of the charter or by-laws or other organizational instrument of the Selling
Stockholders or (C) result in any violation of any applicable treaty, law, statute, rule, regulation, judgment, order, writ or decree
of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Selling Stockholders or any
of its properties, except, in the case of (A) and (C), (x) for such breaches and violations that would not, singly or in the aggregate,
reasonably be expected to result in a Material Adverse Change and (y) as would not, singly or in the aggregate, affect the validity of
the Shares to be sold by the Selling Stockholder or reasonably be expected to materially impact the Selling Stockholder’s ability
to perform its obligations under this Agreement.
(iv)
Registration Rights. Except as described in the Registration Statement, the Selling Stockholders do not have any
registration or other similar rights to have any equity or debt securities registered for sale by the Company under the Registration
Statements or included in the offering contemplated by this Agreement.
(v)
No Material Misstatements. All information furnished to the Company or the Underwriter by or on behalf of the Selling Stockholders
in writing expressly for use in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus is, and on the Time
of Sale, will be, true, correct and complete in all material respects, and did not, as of the Applicable Time, and on the Time of Sale,
will not, contain any untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading,
it being understood and agreed that the only such information consists of the Selling Stockholders Information;
(vi)
Absence of Manipulation. The Selling Stockholders have not taken, and will not take, directly or indirectly, any action
which is designed to or which constituted or would be expected to cause or result in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares.
(vii)
No Unlawful Payments. (i) None of the Selling Stockholders, or any affiliates thereof, have taken any action in furtherance
of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything
else of value, directly or indirectly, to any Government Official, or to any person in violation of any applicable anti-bribery and anti-corruption
laws; (ii) the Selling Stockholders have conducted themselves in compliance with applicable anti-bribery and anti-corruption laws and
have instituted and maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the
representations and warranties contained herein, as applicable; and (iii) the Selling Stockholders will not use, directly or indirectly,
the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money,
or anything else of value, to any person in violation of any applicable anti-corruption laws.
(viii)
No FINRA Member Affiliation. Neither Selling Stockholder nor any of his, her or its affiliates directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under common control with any member firm of FINRA or is a person associated
with a member (within the meaning of the FINRA By-Laws) of FINRA.
(ix)
Anti-Money Laundering Laws. The operations of the Selling Stockholders are presently in material compliance with all applicable
Anti-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 Selling Stockholders with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling
Stockholders, threatened.
(x)
Sanctions Laws. Neither the Selling Stockholders nor, to the knowledge of the Selling Stockholders, any affiliate or other
person associated with or acting on behalf of the Selling Stockholders is currently the subject or the target of any Sanctions, nor are
the Selling Stockholders located, organized or resident in a Sanctioned Country; and the Selling Stockholders will not directly or indirectly
use the proceeds of the offering of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary,
joint venture partner or other person or entity (i) to fund or facilitate any activities of or business with any person that, at the
time of such funding or facilitation, is the subject or target of Sanctions, (ii) to fund or facilitate any activities of or business
in any Sanctioned Country or (iii) in any other manner that will result in a violation by any person (including any person participating
in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions. For the past five years, the Selling Stockholders
have not knowingly engaged in and are not now knowingly engaged in any dealings or transactions with any person that at the time of the
dealing or transaction was known by the Selling Stockholders or its affiliates or anyone acting on their behalf to be the subject or
the target of Sanctions or with any Sanctioned Country.
(xi)
ERISA. The Selling Stockholders are not (i) an employee benefit plan as defined in and subject to ERISA, (ii) a plan or
account subject to Section 4975 of the Code, or (iii) an entity deemed to hold “plan assets” of any such plan or account
under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(xii)
Non-Public Information. The sale of the Shares by the Selling Stockholders pursuant to this Agreement are not prompted
by any material information known to the Selling Stockholders concerning the Company or any of its subsidiaries that is not set forth
in the Time of Sale Disclosure Package or the Prospectus.
(xiii)
Legal Proceedings. There are no legal or governmental proceedings pending to which the Selling Stockholders are a party
or of which any property of the Selling Stockholders are the subject which, if determined adversely to the Selling Stockholders, individually
or in the aggregate, would prevent or impair the consummation of the transactions contemplated by this Agreement;
(b)
Certificate. Any certificate signed by a Selling Stockholder and delivered to the Underwriter or Akerman LLP shall be deemed
a representation and warranty by such Selling Stockholder to the Underwriter as to the matters covered thereby.
4.
Purchase, Sale and Delivery of Securities.
(a)
Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions
herein set forth, the Selling Stockholders agree to sell the Firm Shares to the Underwriter and the Underwriter agrees to purchase from
the Selling Stockholders the number of Firm Shares set forth in Schedule II hereto. The purchase price for each Firm Share shall be $2.425per
share.
The
Firm Shares will be delivered by the Selling Stockholders to the Underwriter for the account of the Underwriter against payment of the
purchase price therefor by wire transfer of same day funds payable to the order of the Selling Stockholders at the offices of Lake Street
Capital Markets, LLC at 920 Second Avenue South, Suite 700 Minneapolis, Minnesota 55402, or such other location as may be mutually acceptable,
at 9:00 a.m. Central time on the second (or if the Shares are priced, as contemplated by Rule 15c6-1(c) under the Exchange Act, after
4:30 p.m. Eastern time, the fourth) full business day following the date hereof, or at such other time and date as the Underwriter and
the Selling Stockholders determine pursuant to Rule 15c6-1(a) under the Exchange Act, such time and date of delivery being herein referred
to as the “First Closing Date.”
(b)
Option Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms
and conditions herein set forth, the Selling Stockholders hereby grant to the Underwriter an option to purchase all or any portion of
the Option Shares at the same purchase price as the Firm Shares, for use solely in covering any over-allotments made by the Underwriter
in the sale and distribution of the Firm Shares. The option granted hereunder may be exercised in whole or in part at any time (but not
more than once) within 30 days after the effective date of this Agreement upon notice (confirmed in writing) by the Underwriter to the
Selling Stockholder setting forth the aggregate number of Option Shares as to which the Underwriter is exercising the option, the names
and denominations in which the certificates for the Option Shares are to be registered and the date and time, as determined by the Underwriter,
when the Option Shares are to be delivered, such time and date being herein referred to as the “Second Closing”
and “Second Closing Date,” respectively; provided, however, that the Second Closing Date shall not be earlier
than the First Closing Date nor earlier than the second business day after the date on which the option shall have been exercised. The
Underwriter agrees to purchase the number of Option Shares (subject to such adjustments to eliminate fractional shares as you may determine)
as set forth in Schedule II hereto opposite. No Option Shares shall be sold and delivered unless the Firm Shares previously have been,
or simultaneously are, sold and delivered.
The
Option Shares will be delivered by the Selling Stockholders to the Underwriter against payment of the purchase price therefor by wire
transfer of same day funds payable to the order of the Selling Stockholders at the offices of Lake Street Capital Markets, LLC at 920
Second Avenue South, Suite 700 Minneapolis, Minnesota 55402, or such other location as may be mutually acceptable at 9:00 a.m., Central
time, on the Second Closing Date.
(c)
Delivery. If the Underwriter so elects, delivery of the Firm Shares or the Option Shares may be made by credit through
full fast transfer to the accounts at The Depository Trust Company designated by the Underwriter. Certificates representing the Firm
Shares or the Option Shares in definitive form, or evidence of their issuance, will be made available for checking at a reasonable time
preceding the First Closing Date or the Second Closing Date, as applicable at the office of Lake Street Capital Markets, LLC at 920 Second
Avenue South, Suite 700 Minneapolis, Minnesota 55402, or such other location as may be mutually acceptable.
5.
Covenants.
(a)
Covenants of the Company. The Company covenants and agrees with the Underwriter as follows:
(i)
Required Filings. During the period beginning on the date hereof and ending on the later of the Second Closing Date or
such date, as in the opinion of counsel for the Underwriter, the Prospectus is no longer required by law to be delivered (assuming the
absence of Rule 172 under the Securities Act), in connection with sales by the Underwriter or a dealer (the “Prospectus Delivery
Period”), prior to amending or supplementing the Registration Statement (including any Rule 462(b) Registration Statement),
the Time of Sale Disclosure Package or the Prospectus, the Company shall furnish to the Underwriter for review a copy of each such proposed
amendment or supplement, and the Company shall not file any such proposed amendment or supplement to which the Underwriter or counsel
for the Underwriter reasonably object. Subject to this Section 5(a)(i), immediately following execution of this Agreement, the Company
will prepare the Prospectus containing the Rule 430B Information and other selling terms of the Shares, the plan of distribution thereof
and such other information as may be required by the Securities Act or the Rules and Regulations or as the Underwriter and the Company
may deem appropriate, and if requested by the Underwriter, an issuer free writing prospectus containing the selling terms of the Shares
and such other information as the Company and the Underwriter may deem appropriate, and will file or transmit for filing with the Commission,
in accordance with Rule 424(b) or Rule 433, as the case may be, copies of the Prospectus and each issuer free writing prospectus.
(ii)
Notification of Certain Commission Actions. After the date of this Agreement, the Company shall promptly advise the Underwriter
in writing (A) of the receipt of any comments of, or requests for additional or supplemental information from, the Commission, (B) of
the time and date of any filing of any post-effective amendment to the Registration Statement or any amendment or supplement to any Preliminary
Prospectus, the Time of Sale Disclosure Package or the Prospectus, (C) of the time and date that any post-effective amendment to the
Registration Statement becomes effective, (D) of the issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereto or of any order preventing or suspending its use or the use of any Preliminary
Prospectus, the Time of Sale Disclosure Package, the Prospectus or any issuer free writing prospectus, or (E) of any proceedings to remove,
suspend or terminate from listing or quotation the Common Stock from any securities exchange upon which it is listed for trading or included
or designated for quotation, or of the threatening or initiation of any proceedings for any of such purposes. If the Commission shall
enter any such stop order at any time, the Company will use commercially reasonable efforts to obtain the lifting of such order at the
earliest possible moment. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b) and 430B, as applicable,
under the Securities Act and will use its reasonable efforts to confirm that any filings made by the Company under Rule 424(b), Rule
433 or Rule 462 were received in a timely manner by the Commission (without reliance on Rule 424(b)(8) or Rule 164(b)).
(iii)
Continued Compliance with Securities Laws. (A) During the Prospectus Delivery Period, the Company will comply with all
requirements imposed upon it by the Securities Act, as now and hereafter amended, and by the Rules and Regulations, as from time to time
in force, and by the Exchange Act so far as necessary to permit the continuance of sales of or dealings in the Shares as contemplated
by the provisions hereof, the Time of Sale Disclosure Package and the Prospectus. If during such period any event occurs as a result
of which the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the Time of Sale Disclosure Package) 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 or appropriate in the opinion of the Company
or its counsel or the Underwriter or counsel for the Underwriter to amend the Registration Statement or supplement the Prospectus (or,
if the Prospectus is not yet available to prospective purchasers, the Time of Sale Disclosure Package) to comply with the Securities
Act or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus (or if the
Prospectus is not yet available to prospective purchasers, the Time of Sale Disclosure Package) in order to comply with the Securities
Act or the Exchange Act, the Company promptly will (x) notify the Underwriter of such untrue statement or omission, (y) amend the Registration
Statement or supplement the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the Time of Sale Disclosure
Package) or file such document (at the expense of the Company) so as to correct such statement or omission or effect such compliance,
and (z) notify the Underwriter when any amendment to the Registration Statement is filed or becomes effective or when any supplement
to the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the Time of Sale Disclosure Package) is filed.
(B)
If at any time following issuance of an issuer free writing prospectus there occurred or occurs an event or development as a result
of which such issuer free writing prospectus conflicted or would conflict with the information contained in the Registration
Statement, the Preliminary Prospectus or the Prospectus or included or would include an untrue statement of a material fact or
omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
prevailing at that subsequent time, not misleading, the Company (x) has promptly notified or promptly will notify the Underwriter of
such conflict, untrue statement or omission, (y) has promptly amended or will promptly amend or supplement, at its own expense, such
issuer free writing prospectus to eliminate or correct such conflict, untrue statement or omission, and (z) has notified or promptly
will notify the Underwriter when such amendment or supplement was or is filed with the Commission where so required to be
filed.
(iv)
Blue Sky Qualifications. The Company shall take or cause to be taken all necessary action required by law to qualify the
Shares for sale under the securities laws of such jurisdictions as the Underwriter reasonably designates and to continue such qualifications
in effect so long as required for the distribution of the Shares, except that the Company shall not be required in connection therewith
to qualify as a foreign corporation or to execute a general consent to service of process in any state.
(v)
Provision of Documents. The Company will furnish, at its own expense, to the Underwriter and counsel for the Underwriter
copies of the Registration Statement, and to the Underwriter and any dealer each Preliminary Prospectus, the Time of Sale Disclosure
Package, the Prospectus, any issuer free writing prospectus, and all amendments and supplements to such documents, in each case as soon
as available and in such quantities as the Underwriter may from time to time reasonably request.
(vi)
Rule 158. The Company will make generally available to its security holders as soon as practicable, but in no event later
than 15 months after the end of the Company’s current fiscal quarter, an earnings statement (which need not be audited) covering
a 12-month period that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations.
(vii)
Payment and Reimbursement of Expenses. The Selling Stockholders, whether or not the transactions contemplated hereunder
are consummated or this Agreement is terminated, will pay or cause to be paid all reasonable out-of-pocket expenses incurred by the Underwriter
in connection with this engagement, including the fees and disbursements of any legal counsel. Such fees and expenses shall not exceed
$100,000 without the Selling Stockholders’ prior approval.
(viii)
No Market Stabilization or Manipulation. The Company has not taken and will not take, directly or indirectly, any action
designed to or which might reasonably be expected to cause or result in, or which has constituted, the stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale of the Shares.
(ix)
SEC Reports. During the Prospectus Delivery Period, the Company will file on a timely basis with the Commission such periodic
and special reports as required by the Rules and Regulations.
(x)
Internal Controls. During the Prospectus Delivery Period, the Company and its subsidiaries will maintain such controls
and other procedures, including without limitation those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable
regulations thereunder, that are designed to ensure that information required to be disclosed by the Company in the reports that 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, including without limitation, controls and procedures designed to ensure that information required to be disclosed by
the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company’s management,
including its principal executive officer and its principal financial officer, or persons performing similar functions, as appropriate
to allow timely decisions regarding required disclosure, to ensure that material information relating to Company, including its subsidiary,
is made known to them by others within those entities.
(xi)
Sarbanes-Oxley. During the Prospectus Delivery Period, the Company and its subsidiaries will comply with all applicable
provisions of the Sarbanes-Oxley Act.
(xii)
Free Writing Prospectuses. The Company and the Selling Stockholders represent and agree that, unless it obtains the prior
written consent of the Underwriter, it has not made and will not make any offer relating to the Shares that would constitute an issuer
free writing prospectus or that would otherwise constitute a free writing prospectus required to be filed with the Commission; provided
that the prior written consent of the Underwriter shall be deemed to have been given in respect of the free writing prospectuses included
in Schedule I. Any such free writing prospectus consented to by the Underwriter is hereinafter referred to as a “Permitted
Free Writing Prospectus.” The Company and the Selling Stockholders represent that the have treated or agrees that it will
treat each Permitted Free Writing Prospectus as an issuer free writing prospectus and has complied and will comply with the requirements
of Rule 164 and Rule 433 applicable to any Permitted Free Writing Prospectus.
6.
Conditions of Underwriter’s Obligations. The obligations of the Underwriter hereunder are subject to the accuracy,
as of the date hereof and at each Closing Date, of and compliance with all representations, warranties and agreements of the Company
and the Selling Stockholders contained herein, to the performance by each of the Company and the Selling Stockholders of their obligations
hereunder and to the following additional conditions:
(a)
Required Filings; Absence of Certain Commission Actions. If filing of the Prospectus, or any amendment or supplement thereto,
or any issuer free writing prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed
the Prospectus (or such amendment or supplement) or such issuer free writing prospectus with the Commission in the manner and within
the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no
stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or
any amendment thereof, nor suspending or preventing the use of the Time of Sale Disclosure Package, the Prospectus or any issuer free
writing prospectus shall have been issued; and no proceedings for the issuance of such an order shall have been initiated or threatened;
any request of the Commission for additional information (to be included in the Registration Statement, the Time of Sale Disclosure Package,
the Prospectus, any issuer free writing prospectus or otherwise) shall have been complied with to the Underwriter’s satisfaction.
(b)
Continued Compliance with Securities Laws. The Underwriter shall not have advised the Company that (i) the Registration
Statement or any amendment thereof or supplement thereto contains an untrue statement of a material fact which, in the Underwriter’s
opinion, is material or omits to state a material fact which, in the Underwriter’s opinion, is required to be stated therein or
necessary to make the statements therein not misleading, or (ii) the Time of Sale Disclosure Package or the Prospectus, or any amendment
thereof or supplement thereto, or any issuer free writing prospectus contains an untrue statement of fact which, in the Underwriter’s
opinion, is material, or omits to state a fact which, in the Underwriter’s opinion, is material and is required to be stated therein,
or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading.
(c)
Absence of Certain Events. Except as contemplated in the Time of Sale Disclosure Package and in the Prospectus, subsequent
to the respective dates as of which information is given in the Time of Sale Disclosure Package, neither the Company nor any of its subsidiaries
shall have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared
or paid any dividends or made any distribution of any kind with respect to its capital stock; and there shall not have been any change
in the capital stock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the
exercise of outstanding options or warrants or conversion of convertible securities), or any material change in the short-term or long-term
debt of the Company (other than as a result of the conversion of convertible securities), or any issuance of options or other similar
equity awards, warrants, convertible securities or other rights to purchase the capital stock of the Company or any of its subsidiaries
except for the issuance of employee stock options or other similar equity awards pursuant to the Company Stock Plans, as in effect on
the date hereof in the ordinary course of business consistent with past practices, or any Material Adverse Change or any development
involving a prospective Material Adverse Change (whether or not arising in the ordinary course of business), or any loss by strike, fire,
flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company or any subsidiary, the effect
of which, in any such case described above, in the Underwriter’s judgment, makes it impractical or inadvisable to offer or deliver
the Shares on the terms and in the manner contemplated in the Time of Sale Disclosure Package and in the Prospectus.
(d)
Opinion of Company Counsel. On each Closing Date, there shall have been furnished to the Underwriter, the opinion and negative
assurance letter, dated as of such Closing Date, of Robert Diener, Esq., counsel for the Company, in form and substance satisfactory
to the Underwriter.
(e)
Opinion of Underwriter’s Counsel. On each Closing Date, there shall have been furnished to the Underwriter, such
opinion or opinions from Akerman LLP, counsel for the Underwriter, dated such Closing Date and addressed to the Underwriter, with respect
to such matters as the Underwriter reasonably may request, and such counsel shall have received such papers and information as they request
to enable them to pass upon such matters.
(f)
Comfort Letters. On the date hereof, on the effective date of any post-effective amendment to the Registration Statement
filed after the date hereof and on each Closing Date, the Underwriter shall have received an accountant’s “comfort”
letter from Rosenberg Rich Baker Berman & P.A., dated such date and addressed to the Underwriter, in form and substance satisfactory
to the Underwriter.
(g)
Officers’ Certificate. On each Closing Date, there shall have been furnished to the Underwriter, a certificate, dated
such Closing Date and addressed to the Underwriter, signed by the chief executive officer and by the chief financial officer of the Company,
to the effect that:
(i)
The representations and warranties of the Company in this Agreement are true and correct as if made at and as of such Closing Date, and
the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior
to such Closing Date;
(ii)
No stop order or other order suspending the effectiveness of the Registration Statement or any part thereof or any amendment thereof
or the qualification of the Shares for offering or sale nor suspending or preventing the use of the Time of Sale Disclosure Package,
the Prospectus or any issuer free writing prospectus, has been issued, and no proceeding for that purpose has been instituted or, to
the best of their knowledge, is contemplated by the Commission or any state or regulatory body; and
(iii)
Affirms the accuracy of the matters set forth in subsection (c) of this Section 6.
(h)
Selling Stockholders’ Certificate. On each Closing Date, there shall have been furnished to the Underwriter, a certificate,
dated such Closing Date and addressed to the Underwriter, signed by the Selling Stockholders, to the effect that:
(i)
The representations and warranties of the Selling Stockholders in this Agreement are true and correct as if made at and as of such Closing
Date, and the Selling Stockholders have complied with all the agreements and satisfied all the conditions on their part to be performed
or satisfied at or prior to such Closing Date;
(i)
CFO Certificate. On each Closing Date, the Company shall have been furnished to the Underwriter, a certificate, dated as
of such Closing Date and addressed to the Underwriter, signed on behalf of the Company by its chief financial officer, regarding certain
financial information included in or incorporated by reference into the Preliminary Prospectus and the Prospectus, respectively, in form
and substance reasonably satisfactory to the Underwriter.
(j)
FINRA No Objections. FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms
and arrangements.
(k)
Other Documents. The Selling Stockholders and the Company shall have furnished to the Underwriter, and counsel for the
Underwriter such additional documents, certificates and evidence as the Underwriter or they may have reasonably requested.
All
such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to the Underwriter and counsel for the Underwriter. The Company will furnish the Underwriter with
such conformed copies of such opinions, certificates, letters and other documents as the Underwriter shall reasonably request.
7.
Indemnification and Contribution.
(a)
Indemnification by the Company. The Company agrees to indemnify and hold harmless the Underwriter, its affiliates, directors
and officers and each person, if any, who controls the Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act, from and against any losses, claims, damages or liabilities, joint or several, to which the Underwriter may become subject, under
the Act or otherwise (including in settlement of any litigation if such settlement is effected with the written consent of the Company),
insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) an untrue statement
or alleged untrue statement of a material fact contained in the Registration Statement, including the 430B Information and any other
information deemed to be a part of the Registration Statement at the time of effectiveness and at any subsequent time pursuant to the
Rules and Regulations, if applicable, or arise out of or are based on the omission or alleged omission to state therein a material fact
required to be stated thereon or necessary in order to make the statements therein not misleading, (ii) an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, the Time of Sale Disclosure Package, the Prospectus, or
any amendment or supplement thereto, any issuer free writing prospectus, or any issuer information that the Company has filed or is required
to file pursuant to Rule 433(d) of the Rules and Regulations, or arise out of or are based on the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, and will reimburse the Underwriter for any legal or other expenses reasonably incurred by it in
connection with investigating or defending against such loss, claim, damage, liability or action as such expenses are incurred; provided,
however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage, liability or action
arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with written information furnished to the Company by the Underwriter, or by the Underwriter through Akerman LLP, specifically
for use in the preparation thereof; it being understood and agreed that the only information furnished by the Underwriter consists of
the information described as such in Section 7(f).
(b)
Indemnification by the Selling Stockholders. The Selling Stockholders agree to indemnify and hold harmless the Underwriter,
its affiliates, directors and officers and each person, if any, who controls the Underwriter within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, from and against any losses, claims, damages or liabilities, joint or several, to which the Underwriter
may become subject, under the Act or otherwise (including in settlement of any litigation if such settlement is effected with the written
consent of the Company), insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based
upon (i) an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, including the 430B
Information and any other information deemed to be a part of the Registration Statement at the time of effectiveness and at any subsequent
time pursuant to the Rules and Regulations, if applicable, or arise out of or are based on the omission or alleged omission to state
therein a material fact required to be stated thereon or necessary in order to make the statements therein not misleading, (ii) an untrue
statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Time of Sale Disclosure Package,
the Prospectus, or any amendment or supplement thereto, any issuer free writing prospectus, or any issuer information that the Company
has filed or is required to file pursuant to Rule 433(d) of the Rules and Regulations, or arise out of or are based on the omission or
alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading, and will reimburse the Underwriter for any legal or other expenses reasonably
incurred by it in connection with investigating or defending against such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made
in reliance upon and in conformity with written information furnished to the Company by the Underwriter, or by the Underwriter through
Akerman LLP, specifically for use in the preparation thereof; it being understood and agreed that the only information furnished by the
Underwriter consists of the information described as such in Section 7(f).
(c)
Indemnification by the Underwriter. The Underwriter will, severally and not jointly, indemnify and hold harmless the Selling
Stockholders and the Company, their respective affiliates, directors and officers (as applicable) and each person, if any, who controls
the Company within the meaning of Section 15 of the Act and Section 20 of the Exchange Act from and against any losses, claims, damages
or liabilities, joint or several, to which the Selling Stockholders or the Company may become subject, under the Act or otherwise (including
in settlement of any litigation, if such settlement is effected with the written consent of the Underwriter), insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) an untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, including the 430B Information and any other information deemed
to be a part of the Registration Statement at the time of effectiveness and at any subsequent time pursuant to the Rules and Regulations,
if applicable, or arise out of or are based on the omission or alleged omission to state therein a material fact required to be stated
thereon or necessary in order to make the statements therein not misleading, (ii) an untrue statement or alleged untrue statement of
a material fact contained in in any Preliminary Prospectus, the Time of Sale Disclosure Package, the Prospectus, or any amendment or
supplement thereto, or any issuer free writing prospectus, or any issuer information that the Company has filed or is required to file
pursuant to Rule 433(d) of the Rules and Regulations, or arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which
they were made, not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Selling Stockholders
or the Company by the Underwriter, specifically for use in the preparation thereof (it being understood and agreed that the only information
furnished by the Underwriter consists of the information described as such in Section 7(f)), and will reimburse the Selling Stockholders
or the Company for any legal or other expenses reasonably incurred by the Selling Stockholders or the Company in connection with investigating
or defending against any such loss, claim, damage, liability or action as such expenses are incurred.
(d)
Notice and Procedures. Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the
commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party
under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying
party shall not relieve the indemnifying party from any liability that it may have to any indemnified party except to the extent such
indemnifying party has been materially prejudiced by such failure (through the forfeiture of substantive rights or defenses). In case
any such action shall be brought against any indemnified party, and it shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate in, and, to the extent that it shall wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of the indemnifying party’s election so to assume the defense thereof, the indemnifying
party shall not be liable to such indemnified party under such subsection for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided, however,
that if, in the reasonable judgment of the Underwriter (upon written advice received from its outside counsel), it is advisable for the
Underwriter to be represented by separate counsel, the Underwriter shall have the right to employ a single counsel (in addition to local
counsel) to represent the Underwriter and all Underwriter who may be subject to liability arising from any claim in respect of which
indemnity may be sought by the Underwriter under subsection (a) of this Section 7, in which event the reasonable fees and expenses of
such separate counsel shall be borne by the indemnifying party or parties and reimbursed to the Underwriter as incurred. An indemnifying
party shall not be obligated under any settlement agreement, consent to judgment or other compromise relating to any action under this
Section 7 to which it has not agreed in writing. In addition, no indemnifying party shall, without the prior written consent of the indemnified
party (which consent shall not be unreasonably withheld or delayed), effect any settlement of any pending or threatened proceeding unless
such settlement includes an unconditional release of such indemnified party for all liability on claims that are the subject matter of
such proceeding and does not include a statement as to, or an admission of, fault, culpability or a failure to act by or on behalf of
an indemnified party. Notwithstanding the foregoing, if at any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel pursuant to this Section 7(c), such indemnifying party agrees that it
shall be liable for any settlement effected without its written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed such indemnified
party in accordance with such request prior to the date of such settlement.
(e)
Contribution; Limitations on Liability; Non-Exclusive Remedy. If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under subsection (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities referred
to in subsection (a) or (b) above, (i) in such proportion as is appropriate to reflect the relative benefits received by the Company
and the Selling Stockholders on the one hand and the Underwriter on the other from the offering of the Shares or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the Company and the Selling Stockholders on the one hand and
the Underwriter on the other in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities,
as well as any other relevant equitable considerations. The relative benefits received by the Company and the Selling Stockholders on
the one hand and the Underwriter on the other shall be deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company and the Selling Stockholders bear to the total underwriting discounts and commissions
received by the Underwriter, in each case as set forth in the table on the cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the Company and the Selling Stockholders or the Underwriter
and the parties’ relevant intent, knowledge, access to information and opportunity to correct or prevent such untrue statement
or omission. The Company and the Selling Stockholders and the Underwriter agree that it would not be just and equitable if contributions
pursuant to this subsection (d) were to be determined by pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the first sentence of this subsection (d). The amount paid by an indemnified party
as a result of the losses, claims, damages or liabilities referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending against
any action or claim which is the subject of this subsection (d). Notwithstanding the provisions of this subsection (d), the Underwriter
shall not be required to contribute any amount in excess of the amount by which the total underwriting discounts and commissions received
by the Underwriter with respect to the Shares purchased by it hereunder exceeds the amount of any damages that the Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The Underwriter’s obligations in this subsection (d) to contribute are several in proportion
to their respective underwriting obligations and not joint. The remedies provided for in this Section 7 are not exclusive and shall not
limit any rights or remedies that might otherwise be available to any indemnified party at law or in equity.
(f)
Information Provided by the Underwriter. The Underwriter confirms and the Company and the Selling Stockholders acknowledge
that the statements with respect to the public offering of the Shares by the Underwriter set forth under the caption “Underwriting”
in the Time of Sale Disclosure Package and in the Prospectus are correct and constitute the only information concerning the Underwriter
furnished in writing to the Company by or on behalf of the Underwriter specifically for inclusion in the Registration Statement, any
Preliminary Prospectus, the Time of Sale Disclosure Package, the Prospectus or any issuer free writing prospectus.
8.
Representations and Agreements to Survive Delivery. All representations, warranties, and agreements of the Company, the
Selling Stockholders and the Underwriter herein or in certificates delivered pursuant hereto, including but not limited to the agreement
of and the Selling Stockholders, the Company and the Underwriter contained in Section 7 hereof, shall remain operative and in full force
and effect regardless of any investigation made by or on behalf of the Underwriter or any controlling person thereof, the Selling Stockholders
or the Company or any of its officers, directors, or controlling persons, and shall survive delivery of, and payment for, the Shares
to and by the Underwriter hereunder and any termination of this Agreement.
9.
Termination of this Agreement.
(a)
Right to Terminate. The Underwriter shall have the right to terminate this Agreement by giving 30 days written notice to
the Selling Stockholders and the Company as hereinafter specified at any time at or prior to the First Closing Date, and the option referred
to in Section 4(b), if exercised, may be cancelled at any time prior to the Second Closing Date, if such date occurs, if (i) the Company
or Selling Stockholders shall have failed, refused or been unable, at or prior to such Closing Date, to perform any agreement on its
part to be performed hereunder, (ii) any condition of the Underwriter’s obligations hereunder are not fulfilled, (iii) trading
in the Company’s Common Stock shall have been suspended by the Commission or The Nasdaq Capital Market or trading in securities
generally on The Nasdaq Capital Market or New York Stock Exchange shall have been suspended, (iv) minimum or maximum prices for trading
shall have been fixed, or maximum ranges for prices for securities shall have been required, on The Nasdaq Capital Market or New York
Stock Exchange, by such Exchange or by order of the Commission or any other Governmental Authority having jurisdiction, (v) a banking
moratorium shall have been declared by federal or New York state authorities or a material disruption in commercial banking or securities
settlement or clearance services in the United States, or (vi) there shall have occurred any attack on, outbreak or escalation of hostilities
or act of terrorism involving the United States, any declaration by the United States of a national emergency or war, any material adverse
change in financial markets, any substantial change or development involving a prospective substantial change in United States or international
political, financial or economic conditions, or any other calamity or crisis that, in the Underwriter’s reasonable judgment, is
material and adverse and makes it impractical or inadvisable to proceed with the completion of the sale of and payment for the Shares.
(b)
Notice of Termination. If the Underwriter elects to terminate this Agreement as provided in this Section, the Selling Stockholders
and the Company shall be notified promptly by the Underwriter by telephone, confirmed by letter.
(c)
Effect of Termination. No party shall be relieved of any liability under this Agreement arising from any breach of its
obligations hereunder occurring prior to termination of this Agreement as a result of the termination of this Agreement.
10.
Notices. Except as otherwise provided herein, all communications hereunder shall be in writing and, if to the Underwriter,
shall be mailed via overnight delivery service or hand delivered via courier to Lake Street Capital Markets, LLC, 920 Second Ave. South,
Suite 700, Minneapolis, Minnesota 55402, Attention: John Baumgartner and Rob Martin, with a copy to (which shall not constitute notice);
if to the Company, shall be mailed via overnight delivery service or hand delivered to it at MamaMancini’s Holdings, Inc., 25 Branca
Road, East Rutherford, New Jersey, 07073; if to the Selling Stockholders, shall be mailed via overnight delivery service or hand delivered
to Carl T. Wolf, C/O MamaMancini’s Holdings, Inc., 25 Branca Road, East Rutherford, New Jersey, 07073. Any party to this Agreement
may change such address for notices by sending to the parties to this Agreement written notice of a new address for such purpose.
11.
Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective successors and assigns and the controlling persons, officers and directors referred to in Section 7. Nothing
in this Agreement is intended or shall be construed to give to any other person, firm or corporation any legal or equitable remedy or
claim under or in respect of this Agreement or any provision herein contained. The term “successors and assigns” as herein
used shall not include any purchaser, as such purchaser, of any of the Shares from the Underwriter.
12.
Absence of Fiduciary Relationship. The Company and the Selling Stockholders acknowledge and agree that: (a) the Underwriter
has been retained solely to act as Underwriter in connection with the sale of the Shares and that no fiduciary, advisory or agency relationship
between the Selling Stockholders, the Company and the Underwriter has been created in respect of any of the transactions contemplated
by this Agreement, irrespective of whether the Underwriter have advised or are advising the Company on other matters; (b) the price and
other terms of the Shares set forth in this Agreement were established by the Company and the Selling Stockholders following discussions
and arms-length negotiations with the Underwriter and the Selling Stockholders and the Company are capable of evaluating and understanding
and understand and accepts the terms, risks and conditions of the transactions contemplated by this Agreement; (c) the Company and the
Selling Stockholders have been advised that the Underwriter and their affiliates are engaged in a broad range of transactions which may
involve interests that differ from those of the Company and the Selling Stockholders and that the Underwriter has no obligation to disclose
such interests and transactions to the Company or the Selling Stockholders by virtue of any fiduciary, advisory or agency relationship;
(d) it has been advised that the Underwriter is acting, in respect of the transactions contemplated by this Agreement, solely for its
own behalf, and not on behalf of the Company or the Selling Stockholders; (e) the Underwriter is not advising the Company, the Selling
Stockholders or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction; and (f) the
Company and the Selling Stockholders waive to the fullest extent permitted by law, any claims they may have against the Underwriter for
breach of fiduciary duty or alleged breach of fiduciary duty in respect of any of the transactions contemplated by this Agreement and
agree that the Underwriter shall have no liability (whether direct or indirect) to the Company or the Selling Stockholders in respect
of such a fiduciary duty claim on behalf of or in right of either the Selling Stockholders or the Company, including stockholders, employees
or creditors of the Company.
13.
Recognition of the U.S. Special Resolution Regimes.
(a)
In the event that the Underwriter is a Covered Entity and becomes subject to a proceeding under a U.S. Special Resolution Regime, the
transfer from the Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the
same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and
obligation, were governed by the laws of the United States or a state of the United States.
(b)
In the event that the Underwriter is a Covered Entity or a BHC Act Affiliate of the Underwriter becomes subject to a proceeding under
a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against the Underwriter are permitted to
be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement
were governed by the laws of the United States or a state of the United States.
(c)
As used in this Section 13:
“BHC
Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance
with, 12 U.S.C. § 1841(k).
“Covered
Entity” means any of the following:
|
(i) |
a
“covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); |
|
(ii) |
a
“covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or |
|
(iii) |
a
“covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). |
“Default
Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81,
47.2 or 382.1, as applicable.
“U.S.
Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder
and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
14.
Governing Law; Waiver of Jury Trial. This Agreement shall be governed by and construed in accordance with the laws of the
State of New York. The Selling Stockholders, the Company (on its behalf and, to the extent permitted by applicable law, on behalf of
its stockholders and affiliates) and the Underwriter hereby irrevocably waive, to the fullest extent permitted by applicable law, any
and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated
hereby.
15.
Counterparts. This Agreement may be executed in one or more counterparts and, if executed in more than one counterpart,
the executed counterparts shall each be deemed to be an original and all such counterparts shall together constitute one and the same
instrument. The words “execution,” “signed,” “signature,” and words of like import in this Agreement
or in any other certificate, agreement or document related to this Agreement, if any, shall include images of manually executed signatures
transmitted by facsimile or other electronic format (including, without limitation, “pdf,” “tif” or “jpg”)
and other electronic signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic
records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic
means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping
system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce
Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state
law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.
16.
General Provisions. This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all
prior written or oral and all contemporaneous oral agreements, understandings and negotiations with respect to the subject matter hereof,
including that certain engagement letter (other than Sections 5 through 12 (including Exhibit I attached thereto) thereof which will
survive), dated January 20, 2023, by and between the Selling Stockholders and the Underwriter. This Agreement may not be amended or modified
unless in writing by all of the parties hereto, and no condition herein (express or implied) may be waived unless waived in writing by
each party whom the condition is meant to benefit. The Section headings herein are for the convenience of the parties only and shall
not affect the construction or interpretation of this Agreement. The invalidity or unenforceability of any Section, paragraph or provision
of this Agreement shall not affect the validity or enforceability of any other Section, paragraph or provision hereof. If any Section,
paragraph or provision of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made
such minor changes (and only such minor changes) as are necessary to make it valid and enforceable.
[Signature
Page Follows]
Please
sign and return to the Selling Stockholders and Company the enclosed duplicates of this letter whereupon this letter will become a binding
agreement between the Selling Stockholders, the Company and the Underwriter in accordance with its terms.
|
Very truly yours, |
|
|
|
MAMAMANCINI’S HOLDINGS, INC. |
|
|
|
By: |
/s/ Adam L. Michaels |
|
Name: |
Adam L. Michaels |
|
Its: |
Chief Executive Officer |
|
|
|
SELLING STOCKHOLDERS |
|
|
|
Carl T. Wolf |
|
|
|
By: |
/s/ Carl T. Wolf, |
|
|
|
Name: |
Carl T. Wolf, individually |
|
|
|
The Wolf 2023 Family Trust |
|
|
|
By: |
/s/ Carl T. Wolf |
|
|
|
Name: |
Carl T. Wolf as Sole Trustee of the Wolf 2023 Family Trust |
Confirmed
as of the date first
above
mentioned.
Lake Street Capital Markets, LLC |
|
|
|
By |
/s/ Michael Towney |
|
Name: |
Michael Towney |
|
Its: |
Head of Investment Banking |
|
[Signature Page to Underwriting Agreement]
SCHEDULE
I
Certain
Permitted Free Writing Prospectuses
None.
SCHEDULE
II
Pricing
Information
Firm
Shares: 6,281,085 shares
Option
Shares: 942,163 shares
Price
to the public: $2.50 per share
Price
to the Underwriter: $2.425 per share
Exhibit
99.1
MamaMancini’s
Announces Pricing of the Public Secondary Offering of Common Stock by Selling Stockholders
EAST
RUTHERFORD, NJ, June 22, 2023 — MamaMancini’s Holdings, Inc. (NASDAQ: MMMB), a leading national marketer and manufacturer of
fresh Deli prepared foods, today announced the pricing of an underwritten public secondary offering of 6,281,085 shares of its common
stock by certain selling stockholders affiliated with Carl T. Wolf (the “Selling Stockholders”) at a price to the public
of $2.50 per share. In addition, the Selling Stockholders have granted the underwriters of the offering a 30-day option to purchase up
to 942,163 additional shares of common stock at the public offering price, less underwriting discounts and commissions. MamaMancini’s
is not selling any shares in the offering, nor will MamaMancini’s receive any of the proceeds from the sale of the shares being
offered by the Selling Stockholders. The Selling Stockholders will bear the costs associated with the sale of such shares, including
underwriting discounts and commissions. The offering is expected to close on or about June 26, 2023, subject to customary closing conditions.
Lake
Street Capital Markets, LLC is acting as sole book-running manager for this offering.
A
registration statement on Form S-3 (including a prospectus and a preliminary prospectus supplement describing the offering) relating
to the public offering of the shares of common stock described above was filed with the Securities and Exchange Commission (“SEC”)
and was declared effective on June 12, 2023. A preliminary prospectus supplement describing the terms of the offering has been filed
with the SEC and is available on the SEC’s website at www.sec.gov. Copies of the final prospectus supplement and the accompanying
prospectus relating to the offering may be obtained, when available, from Lake Street Capital Markets, LLC, Attention: Syndicate Department,
920 Second Avenue South, Suite 700, Minneapolis, Minnesota 55402, or by calling (612) 326-1305, or by emailing syndicate@lakestreetcm.com;
or at the SEC’s website at http://www.sec.gov.
This
press release shall not constitute an offer to sell, or a solicitation of an offer to buy, nor shall there be any sale of these securities
in any state or jurisdiction in which such an offer, solicitation, or sale would be unlawful prior to registration or qualification under
the securities laws of any such state or jurisdiction.
About
MamaMancini’s Holdings, Inc.
MamaMancini’s
Holdings, Inc. (NASDAQ: MMMB) is a leading marketer and manufacturer of prepared foods with over 45,000 product placements in grocery,
mass, club and convenience stores nationally. The Company’s broad product portfolio, born from a rich history in Italian foods,
now consists of a variety of high quality, fresh, clean and easy to prepare foods to address the needs of both our consumers and retailers.
Our vision is to become a one-stop-shop deli solutions platform, leveraging vertical integration and a diverse family of brands to offer
a wide array of prepared foods to meet the changing demands of the modern consumer. For more information, please visit www.mamamancinis.com.
Forward-Looking
Statements
This
press release contains “forward-looking statements” as defined in the Private Securities Litigation Reform Act of 1995, as
amended, that involve significant risks and uncertainties about MamaMancini’s, including but not limited to statements with respect
to the completion, timing, and size of the proposed underwritten offering of common stock. MamaMancini’s may use words such as
“expect,” “anticipate,” “project,” “intend,” “plan,” “aim,” “believe,”
“seek,” “estimate,” “can,” “focus,” “will,” and “may” and similar
expressions to identify such forward-looking statements. Among the important factors that could cause actual results to differ materially
from those indicated by such forward-looking statements are risks relating to, among other things, whether or not MamaMancini’s
will be able to raise capital, the final terms of the underwritten offering of common stock, market and other conditions, the satisfaction
of customary closing conditions related to the underwritten offering of common stock, MamaMancini’s business and financial condition,
and the impact of general economic, public health, industry or political conditions in the United States or internationally. For additional
disclosure regarding these and other risks faced by MamaMancini’s, see disclosures contained in MamaMancini’s’s public
filings with the SEC, including the “Risk Factors” in the company’s Annual Report on Form 10-K, Quarterly Reports on
Form 10-Q, and prospectus supplement for this offering. You should consider these factors in evaluating the forward-looking statements
included in this press release and not place undue reliance on such statements. The forward-looking statements are made as of the date
hereof, and MamaMancini’s undertakes no obligation to update such statements as a result of new information, except as required
by law.
Investor
Relations Contact:
Lucas
A. Zimmerman
Director
MZ
Group - MZ North America
(949)
259-4987
MMMB@mzgroup.us
www.mzgroup.us
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