Filed
Pursuant to Rule 424(b)(3) and Rule 424(c)
Registration
Statement No. 333-282536
PROSPECTUS
SUPPLEMENT NO. 4
(to
Prospectus dated November 6, 2024)
STARDUST
POWER INC.
6,500,000
SHARES OF COMMON STOCK
This
prospectus supplement supplements the prospectus
dated November 6, 2024 (the “Prospectus”), which forms a part of our registration statement on Form S-1 (No. 333-282536).
This prospectus supplement is being filed to update and supplement the information in the Prospectus with the information contained
in our Current Report on Form 8-K filed with the Securities and Exchange Commission (the “SEC”) on January 28, 2025
(the “Current Report”). Accordingly, we have attached the Current Report to
this prospectus supplement.
The
Prospectus relates to the offer and resale of up to 6,500,000 shares of our common stock, $0.0001 per share (the “Common Stock”),
by B. Riley Principal Capital II, LLC (the “Selling Stockholder”). The shares included in this Prospectus consist
of shares of Common Stock that we have issued or that we may, in our discretion, elect to issue and sell to the Selling Stockholder,
from time to time after the date of this Prospectus, pursuant to a Common Stock Purchase Agreement we entered into with the Selling Stockholder
on October 7, 2024 (the “Purchase Agreement”), in which the Selling Stockholder has committed to purchase from us,
at our direction, up to $50,000,000 of our Common Stock, subject to terms and conditions specified in the Purchase Agreement.
Our
Common Stock is listed on The Nasdaq Global Market (“Nasdaq”) under the symbol “SDST”. On January 27,
2025, the last reported sales price of our Common Stock was $1.28 per share.
We
are an “emerging growth company” as defined under U.S. federal securities laws and, as such, have elected to comply with
reduced public company reporting requirements. The Prospectus and this prospectus supplement comply with the requirements that apply
to an issuer that is an emerging growth company. This prospectus supplement updates and supplements the information in the Prospectus
and is not complete without, and may not be delivered or utilized except in combination with, the Prospectus, including any amendments
or supplements thereto. This prospectus supplement should be read in conjunction with the Prospectus and if there is any inconsistency
between the information in the Prospectus and this prospectus supplement, you should rely on the information in this prospectus supplement.
Investing
in our securities involves a high degree of risk. You should review carefully the risks and uncertainties described in the section titled
“Risk Factors” beginning on page 12 of the Prospectus, and under similar headings in any amendments or supplements
to the Prospectus.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities, or passed
upon the accuracy or adequacy of the Prospectus or this prospectus supplement. Any representation to the contrary is a criminal offense.
The
date of this prospectus supplement is January 28, 2025.
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): January 23, 2025
STARDUST
POWER INC.
(Exact
name of registrant as specified in its charter)
| Delaware |
|
001-39875 |
|
99-3863616 |
(State
or other jurisdiction of
incorporation or organization) |
|
(Commission
File Number) |
|
(I.R.S.
Employer
Identification No.) |
15
E. Putnam Ave, Suite 378
Greenwich,
CT 06830
(Address
of principal executive offices)
(800)
742-3095
Registrant’s
telephone number, including area code
Not
Applicable
(Former
name or former address, if changed since last report)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligations of the registrant under
any of the following provisions:
| ☐ |
Written
communications pursuant to Rule 425 under the Securities Act (17 CRF 230.425) |
| |
|
| ☐ |
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CRF 240.14a-12) |
| |
|
| ☐ |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CRF 240.14d-2(b)) |
| |
|
| ☐ |
Pre-commencement
communications pursuant to Rule 13c-4(c) under the Exchange Act (17 CRF 240.13e-4(c)) |
Securities
registered pursuant to Section 12(b) of the Act:
| Title
of each class |
|
Trading
Symbol(s) |
|
Name
of each exchange on which registered |
| Common
Stock, par value $0.0001 per share |
|
SDST |
|
The
Nasdaq Global Market |
| Redeemable
warrants, each whole warrant exercisable for one share of Common Stock at an exercise price of $11.50 |
|
SDSTW |
|
The
Nasdaq Global Market |
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 or Rule 12b-2
of the Securities Exchange Act of 1934.
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
January 27, 2025 (the “Closing Date”), Stardust Power Inc. (the “Company”) consummated a public offering (the
“Offering”) of an aggregate of (i) 4,792,000 shares (the “Shares”) of common stock, par value $0.0001 per share
(the “Common Stock”) and (ii) Common Stock purchase warrants (“Common Warrants”) to purchase up to 4,792,000
shares of Common Stock (the “Common Warrant Shares”). Each Share and associated Common Warrant to purchase one (1) Common
Warrant Share was sold at a combined public offering price of $1.20.
The
Company received aggregate gross proceeds from the Offering of approximately $5.75 million, before deducting placement agent fees and
other offering expenses. The Company intends to use the proceeds of the Offering primarily for general corporate purposes and other business
matters, as well to satisfy certain debts.
The
Securities Offered
Each
Common Warrant has an exercise price of $1.30 per share, is immediately exercisable and expires five (5) years from its issuance date.
The
Shares and accompanying Common Warrants were issued separately.
The
exercise price of the Common Warrants and number of shares of Common Stock issuable upon exercise will adjust in the event of certain
stock dividends and distributions, stock splits, stock combinations, reclassifications or similar events.
The
Common Warrants may be exercised on a cashless basis if at the time of exercise thereof there is no effective registration statement
registering, or the prospectus contained therein is not available for, the issuance of the Common Warrant Shares to the holder.
A
holder of the Common Warrants (together with its affiliates) may not exercise any portion of the Common Warrant to the extent that the
holder would own more than 4.99% (or 9.99%, at the election of the holder) of the outstanding shares of Common Stock immediately after
exercise, except that upon at least 61 days’ prior notice from the holder to the Company, the holder may increase the amount of
beneficial ownership of outstanding shares after exercising the holder’s Common Warrants up to 9.99% of the number of the Company’s
shares of Common Stock outstanding immediately after giving effect to the exercise.
The
Shares, the Common Warrants, and the Common Warrant Shares were offered and sold by the Company pursuant to the Company’s Registration
Statement on Form S-1 (File No. 333-284298), filed by the Company with the U.S. Securities and Exchange Commission (the “SEC”)
under the Securities Act of 1933, as amended (the “Securities Act”) that became effective on January 23, 2025.
The
foregoing does not purport to be a complete description of the Common Warrants and is qualified in its entirety by reference to the full
text of each of such document, which is filed as Exhibit 4.1 to this Current Report on Form 8-K (this “Form 8-K”) and incorporated
herein by reference.
The
Securities Purchase Agreement
In
connection with the Offering, on January 23, 2025, the Company entered into a securities purchase agreement (the “Purchase Agreement”)
with an investor, pursuant to which the Company agreed not to effect or enter into an agreement to effect any issuance by the Company
or any of its subsidiaries of shares of Common Stock or Common Stock equivalents for a period of forty-five (45) days and will not directly
or indirectly offer to sell, sell, grant any option to sell or otherwise dispose of shares of its Common Stock or any securities convertible
into, exercisable or exchangeable for its shares of Common Stock in any “at-the-market,” continuous equity, equity lines,
or variable rate transaction, for a period of one hundred and eighty (180) days after the Closing Date of the Offering, provided that
the foregoing shall not apply, following the forty-five (45) day anniversary of the Closing Date, the Company may effectuate sales pursuant
to its Common Stock Purchase agreement with B. Riley Principal Capital II, LLC, dated October 7, 2024, provided that such sales are at
a price per share equal to or greater than $2.50.
The
foregoing does not purport to be a complete description of the Purchase Agreement and is qualified in its entirety by reference to the
full text of such document, which is filed as Exhibit 10.1 to this Form 8-K and incorporated herein by reference.
The
Placement Agency Agreement
In
connection with the Offering, on January 23, 2025, the Company entered into a placement agency agreement (the “Placement Agency
Agreement”) with A.G.P./Alliance Global Partners (the “Placement Agent”), pursuant to which the Placement Agent agreed
to act as placement agent on a “reasonable best efforts” basis in connection with the Offering. The Company paid the Placement
Agent an aggregate fee equal to 6.0% of the gross proceeds raised in the Offering. Further, the Company agreed to reimburse the Placement
Agent up to an aggregate of $50,000 for accountable legal fees, other reasonable and documented out-of-pocket expenses, and non-accountable
expenses.
The
Placement Agency Agreement and the Purchase Agreement each contains customary representations, warranties and agreements by the Company,
customary conditions to closing, indemnification obligations of the Company, the Placement Agent, or the purchasers in the Offering,
as the case may be, other obligations of the parties and termination provisions. In addition, pursuant to the terms of the Placement
Agency Agreement, the Company’s executive officers and directors have entered into agreements providing that each such person (for
a period of forty-five (45) days from the date of the Placement Agency Agreement) may not, subject to customary exceptions, offer, issue,
sell, transfer or otherwise dispose of the Company’s securities without the prior written consent of the Placement Agent. The Placement
Agency Agreement also provides that the Company (for a period of forty-five (45) days from the date of the Placement Agency Agreement)
may not, subject to customary exceptions, offer, issue, sell, transfer or otherwise dispose of the Company’s securities without
the prior written consent of the Placement Agent and for a period of one hundred eighty (180) days after the Offering the Company will
not directly or indirectly offer to sell, sell, grant any option to sell or otherwise dispose of shares of its Common Stock or any securities
convertible into, exercisable or exchangeable for its shares of Common Stock in any “at-the-market,” continuous equity, equity
lines, or variable rate transaction, without the prior written consent of the Placement Agent, provided that the foregoing shall not
apply, following the forty-five (45) day anniversary of the Closing Date, to sales effectuated pursuant to the Company’s Common
Stock Purchase agreement with B. Riley Principal Capital II, LLC, dated October 7, 2024, provided that such sales are at a price per
share equal to or greater than $2.50.
The
foregoing does not purport to be a complete description of the Placement Agency Agreement and is qualified in its entirety by reference
to the full text of such document, which is filed as Exhibit 10.2 to this Form 8-K and incorporated herein by reference.
The
Company issued a press release announcing the pricing of the Offering on January 24, 2025. A copy of the press release is filed herewith
as Exhibit 99.1 and is incorporated by reference herein, except for the quote of Roshan Pujari contained in paragraph 2 of the press
release.
| Item
9.01. |
Financial
Statement and Exhibits. |
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
| |
Stardust
Power Inc. |
| |
|
|
| Dated:
January 28, 2025 |
By: |
/s/
Roshan Pujari |
| |
Name: |
Roshan
Pujari |
| |
Title: |
Chief
Executive Officer |
Exhibit
4.1
WARRANT
TO PURCHASE SHARES OF COMMON STOCK
STARDUST
POWER INC.
| Warrant
Shares: ________ |
Initial
Exercise Date: January 27, 2025
Issue
Date: January 27, 2025 |
THIS
WARRANT TO PURCHASE SHARES OF COMMON STOCK (this “Warrant”) certifies that, for value received, _____________ or its
assigns (the “Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter
set forth, at any time on or after the date hereof (the “Initial Exercise Date”) and on or prior to 5:00 p.m. (New
York City time) on the fifth (5) year anniversary of the Initial Exercise Date (the “Termination Date”) but not thereafter,
to subscribe for and purchase from Stardust Power Inc., a Delaware corporation (the “Company”), up to ______ shares
of Common Stock, par value $0.0001 per share (the “Common Stock”), of the Company (as subject to adjustment hereunder,
the “Warrant Shares”). The purchase price of one Warrant Share under this Warrant shall be equal to the Exercise Price,
as defined in Section 2(b).
Section
1. Definitions. Capitalized terms used and not otherwise defined herein shall have the meanings set forth in that certain Securities
Purchase Agreement (the “Purchase Agreement”), dated January 23, 2025 2025, among the Company and the purchasers signatory
thereto. In addition to the terms defined elsewhere in this Warrant, the following terms have the meanings indicated in this Section
1.
Section
2. Exercise.
(a)
Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time
or times on or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed facsimile
copy or PDF copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto as Exhibit A (the
“Notice of Exercise”). Within the earlier of (i) one (1) Trading Day and (ii) the number of Trading Days comprising
the Standard Settlement Period (as defined in Section 2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver
the aggregate Exercise Price for the Warrant Shares specified in the applicable Notice of Exercise by wire transfer or cashier’s
check drawn on a United States bank unless the cashless exercise procedure specified in Section 2(c) below is specified in the applicable
Notice of Exercise. Unless required by the Company’s transfer agent, no ink-original Notice of Exercise shall be required, nor
shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise be required. Notwithstanding anything
herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company until the Holder has purchased
all of the Warrant Shares available hereunder and the Warrant has been exercised in full, in which case, the Holder shall surrender this
Warrant to the Company for cancellation within three (3) Trading Days of the date on which the final Notice of Exercise is delivered
to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the total number of Warrant Shares available
hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable hereunder in an amount equal to the
applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records showing the number of Warrant Shares
purchased and the date of such purchases. The Company shall deliver any objection to any Notice of Exercise within one (1) Business Day
of receipt of such notice. Notwithstanding the foregoing, with respect to any Notice(s) of Exercise delivered on or prior to 12:00 p.m.
(New York City time) on the Initial Exercise Date, which may be delivered at any time after the time of execution of the Purchase Agreement,
the Company agrees to deliver, or cause to be delivered, the Warrant Shares subject to such notice(s) by 4:00 p.m. (New York City time)
on the Initial Exercise Date and the Initial Exercise Date shall be the Warrant Share Delivery Date (as defined below) for purposes hereunder,
provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received by such Warrant Share
Delivery Date. The Holder and any assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of the provisions
of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the number of Warrant Shares available for purchase
hereunder at any given time may be less than the amount stated on the face hereof.
(b)
Exercise Price. The exercise price under this Warrant shall be $1.30 per share of Common Stock, subject to adjustment hereunder
(the “Exercise Price”).
(c)
Cashless Exercise. Notwithstanding anything to the contrary set forth herein, if at the time of exercise hereof there is no effective
registration statement registering the issuance of the Warrant Shares to the Holder, or the prospectus contained therein is not available
for the issuance of the Warrant Shares to the Holder, then this Warrant may also be exercised, in whole or in part, at such time by means
of a “cashless exercise” in which the Holder shall be entitled to receive a number of Warrant Shares equal to the quotient
obtained by dividing [(A-B) (X)] by (A), where:
| |
(A) = |
as applicable: (i) the VWAP on the Trading
Day immediately preceding the date of the applicable Notice of Exercise if such Notice of Exercise is (1) both executed and delivered
pursuant to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant to Section 2(a) hereof
on a Trading Day prior to the opening of “regular trading hours” (as defined in Rule 600(b) of Regulation NMS promulgated
under the federal securities laws) on such Trading Day, (ii) at the option of the Holder, either (x) the VWAP on the Trading Day immediately
preceding the date of the applicable Notice of Exercise or (y) the Bid Price of the Common Stock on the principal Trading Market as
reported by Bloomberg L.P. (“Bloomberg”) as of the time of the Holder’s execution of the applicable Notice of Exercise
if such Notice of Exercise is delivered during “regular trading hours” on a Trading Day and is delivered within two (2)
hours thereafter (including until two (2) hours after the close of “regular trading hours” on a Trading Day) pursuant to
Section 2(a) hereof or (iii) the VWAP on the date of the applicable Notice of Exercise if the date of such Notice of Exercise is a
Trading Day and such Notice of Exercise is both executed and delivered pursuant to Section 2(a) hereof after the close of “regular
trading hours” on such Trading Day; |
| |
|
|
| |
(B) = |
the Exercise Price, as adjusted hereunder;
and |
| |
|
|
| |
(X) = |
the number of Warrant Shares that would be
issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a cash exercise
rather than a cashless exercise. |
If
Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the
Securities Act, the Warrant Shares shall take on the registered characteristics of the Warrants being exercised. The Company agrees not
to take any position contrary to this Section 2(c).
“Bid
Price” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock
is then listed or quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m.
(New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the VWAP of the Common Stock
for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then listed or quoted for
trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a similar organization or
agency succeeding to its functions of reporting prices), the most recent bid price per share of Common Stock so reported, or (d) in all
other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the
Purchasers of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees and expenses
of which shall be paid by the Company.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed
or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m.
(New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price
of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then
listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a similar
organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of Common Stock so reported,
or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good
faith by the Purchasers of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees
and expenses of which shall be paid by the Company.
(d)
Mechanics of Exercise.
(i)
Delivery of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted to
the Holder by The Depository Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company
is then a participant in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant
Shares to, or resale of the Warrant Shares by, the Holder or (B) this Warrant is being exercised via cashless exercise, and otherwise
by physical delivery of the Warrant Shares, registered in the Company’s share register in the name of the Holder or its designee,
for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in
the Notice of Exercise by the date that is the earliest of (i) one (1) Trading Day after the delivery to the Company of the Notice of
Exercise, (ii) one (1) Trading Day after delivery of the aggregate Exercise Price to the Company and (iii) the number of Trading Days
comprising the Standard Settlement Period after the delivery to the Company of the Notice of Exercise (such date, the “Warrant
Share Delivery Date”). Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have
become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of
delivery of the Warrant Shares, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise)
is received within the earlier of (i) one (1) Trading Day and (ii) the number of Trading Days comprising the Standard Settlement Period
following delivery of the Notice of Exercise. If the Company fails for any reason to deliver to the Holder the Warrant Shares subject
to a Notice of Exercise by the Warrant Share Delivery Date, the Company shall pay to the Holder, at the Holder’s election either
(A) in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject to such exercise (based on the VWAP
of the Common Stock on the date of the applicable Notice of Exercise), $10 per Trading Day (increasing to $20 per Trading Day on the
third Trading Day after the Warrant Share Delivery Date) for each Trading Day after such Warrant Share Delivery Date until the earlier
of such Warrant Shares being delivered or Holder rescinds such exercise or (B) the amount pursuant to a Buy-In pursuant to Section 2(d)(iv)
hereof. The Company agrees to maintain a registrar (which may be the Transfer Agent) that is a participant in the FAST program so long
as this Warrant remains outstanding and exercisable. As used herein, “Standard Settlement Period” means the standard
settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock
as in effect on the date of delivery of the Notice of Exercise.
(ii)
Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of
a Holder and upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant
evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in
all other respects be identical with this Warrant.
(iii)
Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section
2(d)(i) by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
(iv)
Compensation for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to
the Holder, if the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions
of Section 2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required
by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, shares
of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon
such exercise (a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x)
the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds
(y) the amount obtained by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection
with the exercise at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B)
at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise
was not honored (in which case such exercise shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock
that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the
Holder purchases shares of Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise
of Warrants for shares of Common Stock with an aggregate sale price giving rise to such purchase obligation of $10,000, under clause
(A) of the immediately preceding sentence the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company
written notice indicating the amounts payable to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the
amount of such loss. Nothing herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law
or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s
failure to timely deliver shares of Common Stock upon exercise of the Warrant as required pursuant to the terms hereof.
(v)
No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise
of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company
shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied
by the Exercise Price or round up to the next whole share of Common Stock.
(vi)
Charges, Taxes and Expenses. The issuance and delivery of Warrant Shares shall be made without charge to the Holder for any issue
or transfer tax or other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall
be paid by the Company, and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed
by the Holder; provided, however, that, in the event that Warrant Shares are to be issued in a name other than the name
of the Holder, this Warrant when surrendered for exercise shall be accompanied by the Assignment Form attached hereto as Exhibit B,
duly executed by the Holder and the Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for
any transfer tax incidental thereto. The Company shall pay all Transfer Agent fees required for same-day processing of any Notice of
Exercise and all fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required
for same-day electronic delivery of the Warrant Shares.
(vii)
Closing of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise
of this Warrant, pursuant to the terms hereof.
(e)
Holder’s Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the
right to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance
after exercise as set forth on the applicable Notice of Exercise, the Holder (together with (i) the Holder’s Affiliates, (ii) any
other Persons acting as a group together with the Holder or any of the Holder’s Affiliates, and (iii) any other Persons whose beneficial
ownership of shares of Common Stock would or could be aggregated with the Holder’s for the purposes of Section 13(d) (such Persons,
“Attribution Parties”)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below).
For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and
Attribution Parties shall include the number of Warrant Shares issuable upon exercise of this Warrant with respect to which such determination
is being made, but shall exclude the number of Warrant Shares which would be issuable upon (i) exercise of the remaining, nonexercised
portion of this Warrant beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion
of the unexercised or nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock
Equivalents) subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the
Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e),
beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder, it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance
with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith.
To the extent that the limitation contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable (in
relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant
is exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s
determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates
and Attribution Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation,
and the Company shall have no obligation to verify or confirm the accuracy of such determination and shall have no liability for exercises
of the Warrant that are not in compliance with the Beneficial Ownership Limitation, except to the extent the Holder relies on the number
of outstanding shares of Common Stock that was provided by the Company. In addition, a determination as to any group status as contemplated
above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder,
and the Company shall have no obligation to verify or confirm the accuracy of such determination. For purposes of this Section 2(e),
in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock
as reflected in (A) the Company’s most recent periodic or annual report filed with the Securities and Exchange Commission (the
“Commission”), as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written
notice by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral
request of a Holder, the Company shall within one Trading Day confirm orally and in writing to the Holder the number of shares of Common
Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the
conversion or exercise of securities of the Company, including this Warrant, by the Holder or its Affiliates or Attribution Parties since
the date as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation”
shall be 4.99% (or, at the election of the Holder prior to the issuance of this Warrant, 9.99%) of the number of shares of Common Stock
outstanding immediately after giving effect to the issuance of the Warrant Shares issuable upon exercise of this Warrant. The Holder,
upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 2(e), provided that
the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares of Common Stock outstanding immediately after giving
effect to the issuance of Warrant Shares upon exercise of this Warrant held by the Holder and the provisions of this Section 2(e) shall
continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is
delivered to the Company. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity
with the terms of this Section 2(e) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the
intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give effect
to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant. If the Warrant is
unexercisable solely as a result of the Holder’s Beneficial Ownership Limitation, no alternate consideration is owing to the Holder.
Section
3. Certain Adjustments.
(a)
Stock Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise
makes a distribution or distributions on shares of Common Stock or any other equity or equity equivalent securities payable in shares
of Common Stock (which, for avoidance of doubt, shall not include any Warrant Shares issued by the Company upon exercise of this Warrant),
(ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse stock
split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares of Common Stock
any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which the numerator
shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event and of which
the denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the number of shares issuable
upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant remains unchanged.
Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for the determination of stockholders
entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision,
combination or reclassification.
(b)
[RESERVED]
(c)
Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time the Company grants,
issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record
holders of any class of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the
terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the
number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof,
including without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for the grant,
issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common
Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, that, to the extent
that the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership
Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such
shares of Common Stock as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance
for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
(d)
Pro Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or
other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital
or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend,
spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”),
at any time after the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution
to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable
upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial
Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the
date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided,
however, that, to the extent that the Holder’s right to participate in any such Distribution would result in the Holder
exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent
(or in the beneficial ownership of any shares of Common Stock as a result of such Distribution to such extent) and the portion of such
Distribution shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result
in the Holder exceeding the Beneficial Ownership Limitation).
(e)
Fundamental Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or
more related transactions effects any merger or consolidation of the Company with or into another Person (other than a reincorporation
in a different state), (ii) the Company (and all of its Subsidiaries, taken as a whole), directly or indirectly, effects any sale, lease,
license, assignment, transfer, conveyance or other disposition of all or substantially all of the Company’s (including its Subsidiaries,
taken as a whole) assets in one or a series of related transactions (which shall not include a license or other agreement granting rights
to intellectual property), (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another
Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities,
cash or property and has been accepted by the holders of greater than 50% of the outstanding voting power of the common and preferred
equity of the Company, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization
or recapitalization of shares of Common Stock or any compulsory share exchange pursuant to which the shares of Common Stock are effectively
converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related
transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization,
recapitalization, spin-off, merger or scheme of arrangement) with another Person or group of Persons whereby such other Person or group
acquires greater than 50% of the outstanding voting power of the common and preferred equity of the Company (each, a “Fundamental
Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Warrant
Share that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option
of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of shares of Common Stock
of the successor or acquiring corporation or of the Company, if it is the surviving corporation, or any consideration (the “Alternate
Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock
for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section
2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately
adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one share of
Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in
a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Common Stock
are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given
the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction.
Notwithstanding anything to the contrary, in the event of a Fundamental Transaction, other than a Strategic Transaction which occurs
within six (6) months after the original issuance date of this Warrant, the Company or any Successor Entity (as defined below) shall,
at the Holder’s option, exercisable at any time concurrently with, or within thirty (30) days after, the consummation of the Fundamental
Transaction (or, if later, the date of the public announcement of the applicable Fundamental Transaction), purchase this Warrant from
the Holder by paying to the Holder, as described below, an amount of cash equal to the Black Scholes Value (as defined below) of the
remaining unexercised portion of this Warrant on the date of the consummation of such Fundamental Transaction; provided, however,
that, if the Fundamental Transaction is not within the Company’s control, including not approved by the Company’s Board of
Directors, the Holder shall not have the option to require the Company to purchase this Warrant and shall receive from the Company, or
any Successor Entity, the same type or form of consideration (and in the same proportion), valued at the Black Scholes Value of the unexercised
portion of this Warrant, that is being offered and paid to the holders of Common Stock of the Company in connection with the Fundamental
Transaction, whether that consideration be in the form of cash, stock or any combination
thereof, or whether the holders of Common Stock are given the choice to receive from among alternative forms of consideration in connection
with the Fundamental Transaction; provided, further, that if holders of Common Stock of the Company are not offered or
paid any consideration in such Fundamental Transaction, such holders of Common Stock will be deemed to have received shares of the Successor
Entity (which Successor Entity may be the Company following such Fundamental Transaction) in such Fundamental Transaction. “Black
Scholes Value” means the value of this Warrant based on the Black-Scholes Option Pricing Model obtained from the “OV”
function on Bloomberg determined as of the day of consummation of the applicable Fundamental Transaction for pricing purposes and reflecting
(A) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the time between the date of the public announcement
of the applicable contemplated Fundamental Transaction and the Termination Date, (B) an expected volatility equal to 100 day volatility
obtained from the HVT function on Bloomberg (determined utilizing a 365-day annualization factor) as of the Trading Day immediately following
the public announcement of the applicable Fundamental Transaction, (C) the underlying price per share used in such calculation shall
be the greater of (i) the sum of the price per share being offered in cash, if any, plus the value of any non-cash consideration, if
any, being offered in such Fundamental Transaction and (ii) the highest VWAP during the period beginning on the Trading Day immediately
preceding the public announcement of the applicable contemplated Fundamental Transaction (or the consummation of the applicable Fundamental
Transaction, if earlier) and ending on the Trading Day of the Holder’s request pursuant to this Section 3(e) and (D) a remaining
option time equal to the time between the date of the public announcement of the applicable contemplated Fundamental Transaction and
the Termination Date and (E) a zero cost of borrow. The payment of the Black Scholes Value will be made by wire transfer of immediately
available funds (or such other consideration) within the later of (i) five Business Days of the Holder’s election and (ii) the
effective date of consummation of the Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction
(the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant and the other
Transaction Documents in accordance with the provisions of this Section 3(e) pursuant to written agreements in form and substance reasonably
satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at
the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written
instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital
stock of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable and receivable upon exercise
of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an
exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value
of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of
shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior
to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon
the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after
the date of such Fundamental Transaction, the provisions of this Warrant and the other Transaction Documents referring to the “Company”
shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations
of the Company under this Warrant and the other Transaction Documents with the same effect as if such Successor Entity had been named
as the Company herein.
(f)
[RESERVED]
(g)
Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share of Common
Stock, as the case may be. For purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as
of a given date shall be the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
(h)
Notice to Holder.
(i)
Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company
shall promptly deliver to the Holder by facsimile or email a notice setting forth the Exercise Price after such adjustment and any resulting
adjustment to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
(ii)
Notice to Allow Exercise by Holder. If, while the Warrant is outstanding, (A) the Company declares a dividend (or any other distribution
in whatever form) on the shares of Common Stock, (B) the Company declares a cash dividend on or a redemption of the shares of Common
Stock, (C) the Company authorizes the granting to all holders of the shares of Common Stock rights or warrants to subscribe for or purchase
any shares of capital stock of any class or of any rights, (D) the approval of any stockholders of the Company is required in connection
with a Fundamental Transaction, or (E) the Company authorizes the voluntary or involuntary dissolution, liquidation or winding up of
the affairs of the Company, then, in each case, the Company shall cause to be delivered by facsimile or email to the Holder at its last
facsimile number or email address as it shall appear upon the Warrant Register of the Company, at least 10 calendar days prior to the
applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose
of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of
the shares of Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined
or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective
or close, and the date as of which it is expected that holders of the shares of Common Stock of record shall be entitled to exchange
their shares of Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale,
transfer or share exchange; provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not
affect the validity of the corporate action required to be specified in such notice. To the extent that any notice provided in this Warrant
constitutes, or contains, material, non-public information regarding the Company or any of the Subsidiaries, the Company shall simultaneously
file such notice with the Commission pursuant to a Current Report on Form 8-K. The Holder shall remain entitled to exercise this Warrant
during the period commencing on the date of such notice to the effective date of the event triggering such notice except as may otherwise
be expressly set forth herein.
(iii)
Voluntary Adjustment by the Company. Subject to the rules and regulations of the Trading Market, the Company may at any time during
the term of this Warrant, subject to the prior written consent of the Holder, reduce the then current Exercise Price to any amount and
for any period of time deemed appropriate by the board of directors of the Company.
Section
4. Transfer of Warrant.
(a)
Transferability. This Warrant and all rights hereunder (including, without limitation, any registration rights) are transferable,
in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written
assignment of this Warrant substantially in the form attached hereto as Exhibit B duly executed by the Holder or its agent or
attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required,
such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable,
and in the denomination or denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing
the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary,
the Holder shall not be required to physically surrender this Warrant to the Company unless the Holder has assigned this Warrant in full,
in which case, the Holder shall surrender this Warrant to the Company within three (3) Trading Days of the date on which the Holder delivers
an assignment form to the Company assigning this Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised
by a new holder for the purchase of Warrant Shares without having a new Warrant issued.
(b)
New Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of
the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by
the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division
or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided
or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the initial issuance date of
this Warrant and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
(c)
Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the
“Warrant Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the
registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder,
and for all other purposes, absent actual notice to the contrary.
Section
5. Miscellaneous.
(a)
Currency. All dollar amounts referred to in this Warrant are in United States Dollars (“U.S. Dollars”). All
amounts owing under this Warrant shall be paid in U.S. Dollars. All amounts denominated in other currencies shall be converted in the
U.S. Dollar equivalent amount in accordance with the Exchange Rate on the date of calculation. “Exchange Rate” means,
in relation to any amount of currency to be converted into U.S. Dollars pursuant to this Warrant, the U.S. Dollar exchange rate as published
in the Wall Street Journal (NY edition) on the relevant date of calculation.
(b)
No Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights,
dividends or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly
set forth in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise” pursuant
to Section 2(c) or to receive cash payments pursuant to Section 2(d)(i) and Section 2(d)(iv) herein, in no event shall the Company be
required to net cash settle an exercise of this Warrant.
(c)
Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares,
and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant,
shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the
Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant
or stock certificate.
(d)
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required
or granted herein shall not be a Trading Day, then such action may be taken or such right may be exercised on the next succeeding Trading
Day.
(e)
Authorized Shares. The Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized
and unissued shares of Common Stock a sufficient number of shares to provide for the issuance of the Warrant Shares underlying the Warrant
upon the exercise of any purchase rights under this Warrant. The Company further covenants that its issuance of this Warrant shall constitute
full authority to its officers who are charged with the duty of issuing the necessary Warrant Shares upon the exercise of the purchase
rights under this Warrant. The Company will take all such reasonable action as may be necessary to assure that such Warrant Shares may
be issued and delivered, as provided herein without violation of any applicable law or regulation, or of any requirements of the Trading
Market upon which the Common Stock may be listed. The Company covenants that all Warrant Shares underlying this Warrant, which may be
issued and delivered upon the exercise of the purchase rights represented by this Warrant will, upon exercise of the purchase rights
represented by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly issued, fully paid
and nonassessable and free from all taxes, liens and charges created by the Company in respect of the issue thereof (other than taxes
in respect of any transfer occurring contemporaneously with such issue).
Except
and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending
its certificate of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale
of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant,
but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary
or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the
foregoing, the Company will (i) not increase the par value of any shares of Common Stock above the amount payable therefor upon such
exercise immediately prior to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that
the Company may validly and legally issue fully paid and nonassessable shares of Common Stock upon the exercise of this Warrant and (iii)
use commercially reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having
jurisdiction thereof, as may be, necessary to enable the Company to perform its obligations under this Warrant.
Before
taking any action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the
Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from
any public regulatory body or bodies having jurisdiction thereof.
(f)
Jurisdiction. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be determined
in accordance with the provisions of the Purchase Agreement.
(g)
Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and
if the Holder does not utilize cashless exercise, will have restrictions upon resale imposed by state, federal or foreign securities
laws.
(h)
Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall
operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other provision
of this Warrant or the Purchase Agreement, if the Company willfully and knowingly fails to comply with any provision of this Warrant,
which results in any material damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover
any costs and expenses including, but not limited to, reasonable attorneys’ fees, including those of appellate proceedings, incurred
by the Holder in collecting any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
(i)
Notices. Any notice, request or other document required or permitted to be given or delivered to the Holder by the Company shall
be delivered in accordance with the notice provisions of the Purchase Agreement.
(j)
Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant
to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of
the Holder for the purchase price of any shares of Common Stock or as a stockholder of the Company, whether such liability is asserted
by the Company or by creditors of the Company.
(k)
Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will
be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to
assert the defense in any action for specific performance that a remedy at law would be adequate.
(l)
Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall
inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns
of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall
be enforceable by the Holder or holder of Warrant Shares.
(m)
Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company and
the Holder.
(n)
Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall
be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining
provisions of this Warrant.
(o)
Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed
a part of this Warrant.
******************
(Signature
Page Follows)
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above
indicated.
| |
STARDUST
POWER INC. |
| |
|
|
| |
By: |
|
| |
Name: |
Roshan
Pujari |
| |
Title: |
Chief
Executive Officer |
EXHIBIT
A
NOTICE
OF EXERCISE
TO:
STARDUST POWER INC.
(1)
The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only
if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2)
Payment shall take the form of (check applicable box):
☐ in
lawful money of the United States; or
☐ if
permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection 2(c),
to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure
set forth in subsection 2(c).
(3)
Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
____________________________________________
The
Warrant Shares shall be delivered to the following DWAC Account Number:
____________________________________________
| _______________________ |
| [SIGNATURE
OF HOLDER] |
| |
| Name
of Investing Entity: ____________________ |
| Signature
of Authorized Signatory of Investing Entity: ____________________ |
| Name
of Authorized Signatory: ____________________ |
| Title
of Authorized Signatory: ____________________ |
| Date:
____________________ |
EXHIBIT
B
ASSIGNMENT
FORM
(To
assign the foregoing Warrant, execute this form and supply required information. Do not use this form to exercise the Warrant to purchase
shares.)
FOR
VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
| Name: |
|
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(Please
Print) |
|
| Address: |
|
|
| |
(Please
Print) |
|
| Phone
Number: |
|
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| Email
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Exhibit
10.1
SECURITIES
PURCHASE AGREEMENT
This
Securities Purchase Agreement (this “Agreement”) is dated as of January 23, 2025, between Stardust Power Inc., a Delaware
corporation (the “Company”), and each purchaser identified on the signature pages hereto (each, including its successors
and assigns, a “Purchaser” and collectively the “Purchasers”).
WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant to an effective registration statement under the Securities
Act (as defined below) as to the Shares and the Warrants (and the Warrant Shares underlying the Warrants), the Company desires to issue
and sell to each Purchaser, and each Purchaser, severally and not jointly, desires to purchase from the Company, securities of the Company
as more fully described in this Agreement.
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration the receipt
and adequacy of which are hereby acknowledged, the Company and each Purchaser agree as follows:
ARTICLE
I.
DEFINITIONS
1.1
Definitions. In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following terms
have the meanings set forth in this Section 1.1:
“Acquiring
Person” shall have the meaning ascribed to such term in Section 4.5.
“Action”
shall have the meaning ascribed to such term in Section 3.1(j).
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person as such terms are used in and construed under Rule 405 under the Securities Act.
“Applicable
Laws” shall have the meaning ascribed to such term in Section 3.1(ii).
“Auditor”
means KNAV CPA LLP.
“Authorizations”
shall have the meaning ascribed to such term in Section 3.1(ii).
“Beneficial
Ownership Limitation” shall have the meaning ascribed to such term in Section 2.1.
“BHCA”
shall have the meaning ascribed to such term in Section 3.1(pp).
“Board
of Directors” means the board of directors of the Company.
“Business
Day” means any day other than Saturday, Sunday, or other day on which the Federal Reserve Bank of New York is closed.
“Closing”
means the closing of the purchase and sale of the Securities pursuant to Section 2.1.
“Closing
Date” means the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable parties
thereto, and all conditions precedent to (i) the Purchasers’ obligations to pay the Subscription Amount at the Closing and (ii)
the Company’s obligations to deliver the Securities, in each case, at the Closing have been satisfied or waived, but in no event
later than the first (1st) Trading Day following the date hereof if this Agreement is entered into before 4:00 p.m. Eastern
time on a Trading Day, or no later than the second (2nd) Trading Day following the date hereof, if this Agreement is entered
(i) at or after 4:00 p.m. Eastern time on a Trading Day or on a day that is not a Trading Day.
“Commission”
means the United States Securities and Exchange Commission.
“Common
Stock” means the common stock of the Company, par value $0.0001 per share.
“Common
Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire
at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is
at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Common
Warrants” means, collectively, the Common Stock purchase warrants delivered to the Purchasers at the Closing in accordance
with Section 2.2(a) hereof, in substantially the form of Exhibit A attached hereto.
“Company
Counsel” means Thompson Hine LLP with offices located at 300 Madison Avenue, 27th Floor, New York, New York 10017-6232.
“Data
Privacy Laws” shall have the meaning ascribed to such term in Section 3.1(jj).
“Disclosure
Schedules” means the Disclosure Schedules of the Company delivered concurrently herewith.
“Disclosure
Time” means, (i) if this Agreement is signed on a day that is not a Trading Day or after 9:00 a.m. (New York City time) and
before midnight (New York City time) on any Trading Day, 9:01 a.m. (New York City time) on the Trading Day immediately following the
date hereof, unless otherwise instructed as to an earlier time by the Placement Agent, and (ii) if this Agreement is signed between midnight
(New York City time) and 9:00 a.m. (New York City time) on any Trading Day, no later than 9:01 a.m. (New York City time) on the date
hereof, unless otherwise instructed as to an earlier time by the Placement Agent.
“DVP”
shall have the meaning ascribed to such term in Section 2.1.
“DWAC”
shall have the meaning ascribed to such term in Section 2.2.
“Emerging
Growth Company” shall have the meaning ascribed to such term in Section 3.1(tt).
“Environmental
Laws” shall have the meaning ascribed to such term in Section 3.1(m).
“Evaluation
Date” shall have the meaning ascribed to such term in Section 3.1(t).
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exempt
Issuance” means the issuance of (a) Common Stock or options to employees, officers, directors, service providers or consultants
or contractors of the Company pursuant to any share or option plan or arrangement duly adopted for such purpose, by a majority of the
non-employee members of the Board of Directors or a majority of the members of a committee of non-employee directors established for
such purpose for services rendered to the Company, (b) securities upon the exercise or exchange of or conversion of any Securities issued
hereunder and/or other securities exercisable or exchangeable for or convertible into Common Stock issued and outstanding on the date
of this Agreement, provided that such securities have not been amended since the date of this Agreement to increase the number of such
securities or to decrease the exercise price, exchange price or conversion price of such securities (other than in connection with share
splits or combinations) or to extend the term of such securities, (c) Common Stock or securities convertible into or exchangeable for
Common Stock as consideration for mergers, acquisitions, sale or purchase of assets or other business combinations occurring after the
date of this Agreement which are not issued for capital raising purposes, (d) Common Stock or securities convertible into or exchangeable
for Common Stock offered and sold in a privately negotiated transaction to vendors, customers, lenders, strategic partners or potential
strategic partners or other investors conducted in a manner so as not to be integrated with the offering hereby, provided that such securities
are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the
filing of any registration statement in connection therewith during the prohibition period in Section 4.11(a) herein, and (e) Common
Stock or securities convertible into or exchangeable for Common Stock in connection with any acquisition, debt financing, strategic investment
or other similar transaction (including any joint venture, strategic alliance or partnership); provided, however that any such transaction
shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity
whose primary business is investing in securities and provided that such securities are issued as “restricted securities”
(as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection
therewith during the prohibition period in Section 4.11(a) herein, and provided that any such issuance shall only be to a Person (or
to the equity holders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business
synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds,
but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an
entity whose primary business is investing in securities.
“FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended.
“Federal
Reserve” shall have the meaning ascribed to such term in Section 3.1(pp).
“FINRA”
shall have the meaning ascribed to such term in Section 3.1(e).
“GAAP”
means generally accepted accounting principles in the United States.
“Hazardous
Materials” shall have the meaning ascribed to such term in Section 3.1(m).
“Indebtedness”
shall have the meaning ascribed to such term in Section 3.1(bb).
“Intellectual
Property Rights” shall have the meaning ascribed to such term in Section 3.1(p).
“Issuer
Free Writing Prospectus” shall have the meaning ascribed to such term in Section 3.1(g).
“IT
Systems” shall have the meaning ascribed to such term in Section 3.1(ss).
“IT
Systems and Data” shall have the meaning ascribed to such term in Section 3.1(mm).
“Liens”
means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Lock-Up
Agreements” means the Lock-Up Agreements, dated as of the date hereof, by and among the Company and each director and officer
of the Company, in substantially the form of Exhibit C attached hereto.
“Material
Adverse Effect” shall have the meaning assigned to such term in Section 3.1(b).
“Material
Permits” shall have the meaning ascribed to such term in Section 3.1(n).
“Money
Laundering Laws” shall have the meaning assigned to such term in Section 3.1(qq).
“OFAC”
shall have the meaning ascribed to such term in Section 3.1(nn).
“Per
Share Purchase Price” equals $1.20, subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations
and other similar transactions of shares of Common Stock that occur between the date hereof and the Closing Date.
“Per
Pre-Funded Warrant Purchase Price” equals $0.0001, subject to adjustment for reverse and forward stock splits, stock dividends,
stock combinations and other similar transactions relating to shares of Common Stock that occur after the date of this Agreement.
“Permissible
Debt” means all amount due to Endurance Antarctica Partner II, LLC pursuant to the promissory note the Company agreed to issue
Endurance Antarctica Partner II, LLC in accordance with the binding term sheet the Company entered into with Endurance Antarctica Partner
II, LLC on December 6, 2024, as disclosed in the Company’s Current Report on Form 8-K filed on December 12, 2024, as well as
all amounts due to the several lenders pursuant to the promissory note that the Company agreed to issue to several lenders providing
for loans in the aggregate principal amount of $1.8 million entered into on December 13, 2024.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Personal
Data” shall have the meaning ascribed to such term in Section 3.1(ss).
“Placement
Agency Agreement” means that certain Placement Agency Agreement by and between the Company and the Placement Agent, dated as
of the date hereof.
“Placement
Agent” means A.G.P./Alliance Global Partners.
“Placement
Agent Counsel” means Sullivan & Worcester LLP with offices located at 1251 Avenue of the Americas, 19th Floor, New York,
NY 10020.
“Pre-Funded
Warrants” means, collectively, the warrants delivered to the Purchasers at Closing in accordance with Section 2.2(a) hereof,
in substantially the form of Exhibit B attached hereto.
“Preliminary
Prospectus” means the preliminary prospectus included in the Registration Statement at the time the Registration Statement
is declared effective.
“Pre-Settlement
Period” shall have the meaning ascribed to such term in Section 2.1.
“Pre-Settlement
Securities” shall have the meaning ascribed to such term in Section 2.1.
“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding,
such as a deposition), pending or, to the Company’s knowledge, threatened in writing against or affecting the Company.
“Prospectus”
means the final prospectus filed pursuant to the Registration Statement.
“Purchaser
Party” shall have the meaning ascribed to such term in Section 4.8.
“Registration
Statement” means the effective registration statement with the Commission on Form S-1 (File No. 333-284298), which registers
the sale of the Securities and includes any Rule 462(b) Registration Statement.
“Required
Approvals” shall have the meaning ascribed to such term in Section 3.1(e).
“Rule
144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted
from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect
as such Rule.
“Rule
424” means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted
from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect
as such Rule.
“Rule
462(b) Registration Statement” means any registration statement prepared by the Company registering additional Securities,
which was filed with the Commission on or prior to the date hereof and became automatically effective pursuant to Rule 462(b) promulgated
by the Commission pursuant to the Securities Act.
“SEC
Reports” shall have the meaning ascribed to such term in Section 3.1(i).
“Securities”
means the Shares, the Warrants and the Warrant Shares.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Shares”
means the shares of Common Stock issued or issuable to each Purchaser pursuant to this Agreement.
“Short
Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be
deemed to include locating and/or borrowing shares of Common Stock).
“Subscription
Amount” means, as to each Purchaser, the aggregate amount to be paid for Shares and Warrants purchased hereunder as specified
below such Purchaser’s name on the signature page of this Agreement and next to the heading “Subscription Amount,”
in United States dollars and in immediately available funds.
“Subsidiary”
means any subsidiary of the Company as set forth in the SEC Reports.
“Trading
Day” means a day on which the principal Trading Market is open for trading.
“Trading
Market” means any of the following markets or exchanges on which the shares of Common Stock are listed or quoted for trading
on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, or
the New York Stock Exchange (or any successors to any of the foregoing).
“Transaction
Documents” means this Agreement, the Warrants, the Lock-Up Agreements, the Placement Agency Agreement and all exhibits and
schedules thereto and hereto and any other documents or agreements executed in connection with the transactions contemplated hereunder.
“Transfer
Agent” means Continental Stock Transfer & Trust Company, the current transfer agent of the Company, with a mailing address
at 1 State St 30th floor, New York, NY 10004, and an email address of administration@continentalstock.com, and any successor transfer
agent of the Company.
“Variable
Rate Transaction” shall have the meaning ascribed to such term in Section 4.10(b).
“Warrants”
means the Common Warrants and the Pre-Funded Warrants.
“Warrant
Shares” means the shares of Common Stock issuable upon exercise of the Warrants.
ARTICLE
II.
PURCHASE AND SALE
2.1
Closing. On the Closing Date, upon the terms and subject to the conditions set forth herein, substantially concurrent with the
execution and delivery of this Agreement by the parties hereto, the Company agrees to sell, and the Purchasers, severally and not jointly,
agree to purchase, (i) the number of shares of Common Stock set forth under the heading “Subscription Amount” on the Purchaser’s
signature page hereto, at the Per Share Purchase Price, and (ii) Common Warrants exercisable for shares of Common Stock as calculated
pursuant to Section 2.2(a); provided, however, that, to the extent that a Purchaser determines, in its sole discretion, that such Purchaser
(together with such Purchaser’s Affiliates, and any Person acting as a group together with such Purchaser or any of such Purchaser’s
Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation, or as such Purchaser may otherwise choose, in lieu
of purchasing shares of Common Stock, such Purchaser may elect to purchase Pre-Funded Warrants in lieu of shares of Common Stock in such
manner to result in the full Subscription Amount being paid by such Purchaser to the Company. The “Beneficial Ownership Limitation”
shall be 4.99% (or, at the election of the Purchaser prior to the issuance of any Shares, 9.99%) of the number of shares of Common Stock,
in each case, outstanding immediately after giving effect to the issuance of the Securities on the Closing Date.
Each
Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser shall be made available for
Delivery Versus Payment (“DVP”) settlement with the Company or its designees. The Company shall deliver to each Purchaser
its respective Shares and Warrants as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other
items set forth in Section 2.2 at the Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the
Closing shall occur at the offices of the Placement Agent or such other location as the parties shall mutually agree. Unless otherwise
directed by the Placement Agent, settlement of the Shares shall occur via DVP (i.e., on the Closing Date, the Company shall issue the
Shares registered in the Purchasers’ names and addresses and released by the Transfer Agent directly to the account(s) at the Placement
Agent identified by each Purchaser; upon receipt of such Shares, the Placement Agent shall promptly electronically deliver such Shares
to the applicable Purchaser, and payment therefor shall be made by the Placement Agent (or its clearing firm) by wire transfer to the
Company). Notwithstanding anything herein to the contrary, if at any time on or after the time of execution of this Agreement by the
Company and an applicable Purchaser through the Closing (the “Pre-Settlement Period”), such Purchaser sells to any
Person all, or any portion, of any Shares to be issued hereunder to such Purchaser at the Closing (collectively, the “Pre-Settlement
Shares”), such Person shall, automatically hereunder (without any additional required actions by such Purchaser or the Company),
be deemed to be a Purchaser under this Agreement unconditionally bound to purchase, and the Company shall be deemed unconditionally bound
to sell, such Pre-Settlement Shares to such Person at the Closing; provided, that the Company shall not be required to deliver any Pre-Settlement
Shares to such Purchaser prior to the Company’s receipt of the Subscription Amount for such Pre-Settlement Shares hereunder; provided,
further, that the Company hereby acknowledges and agrees that the forgoing shall not constitute a representation or covenant by such
Purchaser as to whether or not such Purchaser will elect to sell any Pre-Settlement Shares during the Pre-Settlement Period. The decision
to sell any Shares will be made in the sole discretion of such Purchaser from time to time, including during the Pre-Settlement Period.
Notwithstanding the foregoing, with respect to any Notice(s) of Exercise (as defined in the Warrants) delivered on or prior to 12:00
p.m. (New York City time) on the Closing Date, which may be delivered at any time after the time of execution of this Agreement, the
Company agrees to deliver the Warrant Shares subject to such notice(s) by 4:00 p.m. (New York City time) on the Closing Date and the
Closing Date shall be the Warrant Share Delivery Date (as defined in the Warrants) for purposes hereunder.
2.2
Deliveries.
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(a) |
On
or prior to the Closing Date, the Company shall deliver or cause to be delivered to each Purchaser the following: |
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(i) |
this
Agreement duly executed by the Company; |
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(ii) |
the
Company’s wire instructions, on Company letterhead and executed by the Company’s Chief Executive Officer or Chief Financial
Officer; |
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(iii) |
subject
to the eighth sentence in Section 2.1, a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent
to deliver on an expedited basis via The Depository Trust Company Deposit or Withdrawal at Custodian system (“DWAC”)
shares of Common Stock equal to the portion of such Purchaser’s Subscription Amount divided by the Per Share Purchase Price,
registered in the name of such Purchaser; |
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(iv) |
the
Preliminary Prospectus and the Prospectus (which may be delivered in accordance with Rule 172 under the Securities Act); |
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(v) |
for
each Purchaser of Pre-Funded Warrants pursuant to Section 2.1, a Pre-Funded Warrant registered in the name of such Purchaser to purchase
up to a number of shares of Common Stock equal to the portion of such Purchaser’s Subscription Amount applicable to Pre-Funded
Warrants divided by the sum of the Per Pre-Funded Warrant Purchase Price plus the exercise price per Warrant Share underlying such
Pre-Funded Warrants, subject to adjustment therein; |
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(vi) |
a
Common Warrant registered in the name of such Purchaser to purchase up to a number of shares of Common Stock equal to 100% of such
Purchaser’s shares of Common Stock and Pre-Funded Warrants, as applicable, with an exercise price equal to $1.30 per share,
subject to adjustment therein; |
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(vii) |
the
duly executed Lock-Up Agreements; |
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(viii) |
an
Officer’s Certificate, in form and substance reasonably satisfactory to the Placement Agent; |
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(ix) |
Secretary’s
certificate executed by an officer of the Company, dated as of the date of Closing, in form and substance reasonable acceptable to
the Purchasers and Placement Agent; and |
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(x) |
a
legal opinion and negative assurance letter of Company Counsel, in form reasonably acceptable to the Placement Agent and the Purchasers. |
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(b) |
On
or prior to the Closing Date, each Purchaser shall deliver or cause to be delivered to the Company, the following: |
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(i) |
this
Agreement duly executed by such Purchaser; and |
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(ii) |
such
Purchaser’s Subscription Amount with respect to the Securities purchased by such Purchaser, which shall be made available for
DVP settlement with the Company or its designees. |
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(c) |
[RESERVED] |
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(d) |
On
the Closing Date, the Placement Agent shall have received: |
| (i) | from
the Auditor, a cold comfort letter containing statements and information of the type customarily
included in accountants’ comfort letters with respect to the financial statements and
certain financial information contained in the Registration Statement, the Preliminary Prospectus
and the Prospectus, or any Issuer Free Writing Prospectus, addressed to the Placement Agent
and in form and substance satisfactory in all respects to the Placement Agent, dated as of
the date of this Agreement; and |
| (ii) | from
the Chief Financial Officer of the Company, a certificate, dated as of the Closing Date,
to the effect that the Chief Financial Officer of the Company reaffirms the statements made
in the certificate furnished pursuant to Section 2.2(c)(ii). |
2.3
Closing Conditions.
| (a) | The
obligations of the Company hereunder in connection with the Closing are subject to the following
conditions being met: |
| (i) | the
accuracy in all material respects (or, to the extent representations or warranties are qualified
by materiality or Material Adverse Effect, in all respects) when made and on the Closing
Date of the representations and warranties of the Purchasers contained herein (unless as
of a specific date therein in which case they shall be accurate as of such date); |
| (ii) | all
obligations, covenants and agreements of each Purchaser required to be performed at or prior
to the Closing Date shall have been performed; and |
| (iii) | the
delivery by each Purchaser of the items set forth in Section 2.2(b) of this Agreement. |
| (b) | The
respective obligations of the Purchasers hereunder in connection with the Closing are subject
to the following conditions being met: |
| (i) | the
accuracy in all material respects (or, to the extent representations or warranties are qualified
by materiality or Material Adverse Effect, in all respects) when made and on the Closing
Date of the representations and warranties of the Company contained herein (unless as of
a specific date therein in which case they shall be accurate as of such date); |
| (ii) | all
obligations, covenants and agreements of the Company required to be performed at or prior
to the Closing Date shall have been performed; |
| (iii) | the
delivery by the Company of the items set forth in Section 2.2(a) of this Agreement; |
| (iv) | there
shall have been no Material Adverse Effect with respect to the Company since the date hereof;
and |
| (v) | from
the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended
by the Commission or any Trading Market, and, at any time prior to the Closing Date, trading
in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited,
or minimum prices shall not have been established on securities whose trades are reported
by such service, or on any Trading Market, nor shall a banking moratorium have been declared
either by the United States or New York State authorities nor shall there have occurred after
the date of this Agreement any material outbreak or escalation of hostilities or other national
or international calamity of such magnitude in its effect on, or any material adverse change
in, any financial market which, in each case, in the reasonable judgment of such Purchaser,
makes it impracticable or inadvisable to purchase the Securities at the Closing. |
ARTICLE
III.
REPRESENTATIONS AND WARRANTIES
3.1
Representations and Warranties of the Company. Except as set forth in the SEC Reports and Disclosure Schedules, which Disclosure
Schedules shall be deemed a part hereof and shall qualify any representation made herein to the extent of the disclosures contained in
the corresponding section of the Disclosure Schedules, the Company hereby makes the following representations and warranties to each
Purchaser:
| (a) | Subsidiaries.
All of the direct and indirect subsidiaries of the Company are set forth in the SEC Reports.
The Company owns, directly or indirectly, all of the capital stock or other equity interests
of each Subsidiary, free and clear of any Liens, and all of the issued and outstanding shares
of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable
and free of preemptive and similar rights to subscribe for or purchase securities. If the
Company has no subsidiaries, all other references to the Subsidiaries or any of them in the
Transaction Documents shall be disregarded. |
| (b) | Organization
and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated
or otherwise organized, validly existing, and, if applicable under the laws of the jurisdiction
in which they are formed, in good standing under the laws of the jurisdiction of its incorporation
or organization, with the requisite power and authority to own and use its properties and
assets and to carry on its business as currently conducted. Neither the Company nor any Subsidiary
is in violation nor default of any of the provisions of its respective memorandum of association,
articles of association, certificate or articles of incorporation, bylaws, operating agreement,
or other organizational or charter documents. Each of the Company and the Subsidiaries is
duly qualified to conduct business and is in good standing as a foreign corporation or other
entity in each jurisdiction in which the nature of the business conducted or property owned
by it makes such qualification necessary, except where the failure to be so qualified or
in good standing, as the case may be, could not have or reasonably be expected to result
in: (i) a material adverse effect on the legality, validity or enforceability of any Transaction
Document, (ii) a material adverse effect on the results of operations, assets, business or
financial condition of the Company and the Subsidiaries, taken as a whole, or (iii) a material
adverse effect on the Company’s ability to perform in any material respect on a timely
basis its obligations under any Transaction Document (any of (i), (ii) or (iii), a “Material
Adverse Effect”) and no Proceeding has been instituted in any such jurisdiction
revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority
or qualification. |
| (c) | Authorization;
Enforcement. The Company has the requisite corporate power and authority to enter into
and to consummate the transactions contemplated by this Agreement and each of the other Transaction
Documents and otherwise to carry out its obligations hereunder and thereunder. The execution
and delivery of this Agreement and each of the other Transaction Documents by the Company
and the consummation by it of the transactions contemplated hereby and thereby have been
duly authorized by all necessary action on the part of the Company and no further action
is required by the Company, the Board of Directors, a committee of the Board of Directors
or the Company’s stockholders in connection herewith or therewith other than in connection
with the Required Approvals. This Agreement and each other Transaction Document to which
it is a party has been (or upon delivery will have been) duly executed by the Company and,
when delivered in accordance with the terms hereof and thereof, will constitute the valid
and binding obligation of the Company enforceable against the Company in accordance with
its terms, except (i) as limited by general equitable principles and applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application affecting enforcement
of creditors’ rights generally, (ii) as limited by laws relating to the availability
of specific performance, injunctive relief or other equitable remedies and (iii) insofar
as indemnification and contribution provisions may be limited by applicable law. |
| (d) | No
Conflicts. Except as set forth in the SEC Reports, the execution, delivery and
performance by the Company of this Agreement and the other Transaction Documents to which
it is a party, the issuance and sale of the Securities and the consummation by it of the
transactions contemplated hereby and thereby do not and will not (i) conflict with or violate
any provision of the Company’s or any Subsidiary’s memorandum of association,
articles of association, certificate or articles of incorporation, bylaws, operating agreement,
or other organizational or charter documents, or (ii) conflict with, or constitute a default
(or an event that with notice or lapse of time or both would become a default) under, result
in the creation of any Lien upon any of the properties or assets of the Company or any Subsidiary,
or give to others any rights of termination, amendment, anti-dilution or similar adjustments
acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement,
credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise)
or other understanding to which the Company or any Subsidiary is a party or by which any
property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject
to the Required Approvals, conflict with or result in a violation of any law, rule, regulation,
order, judgment, injunction, decree or other restriction of any court or governmental authority
to which the Company or a Subsidiary is subject (including federal and state securities laws
and regulations), or by which any property or asset of the Company or a Subsidiary is bound
or affected; except in the case of each of clauses (ii) and (iii), such as could not have
or reasonably be expected to result in a Material Adverse Effect. |
| (e) | Filings,
Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization
or order of, give any notice to, or make any filing or registration with, any court or other
federal, state, local or other governmental authority or other Person in connection with
the execution, delivery and performance by the Company of the Transaction Documents, other
than: (i) the filings required pursuant to Section 4.4 of this Agreement, (ii) the filing
with the Commission of the Prospectus, (iii) notices and/or application(s) to and approvals
by each applicable Trading Market for the listing of the applicable Securities for trading
thereon in the time and manner required thereby, and (iv) filings required by the Financial
Industry Regulatory Authority (“FINRA”) (collectively, the “Required
Approvals”). |
| (f) | Issuance
of the Securities; Registration. The Shares and Warrant Shares are duly authorized and,
when issued and paid for in accordance with the applicable Transaction Documents, will be
duly and validly issued, fully paid and non-assessable, free and clear of all Liens imposed
by the Company. The Warrants are duly authorized and, when issued in accordance with this
Agreement, will be duly and validly issued, fully paid and non-assessable, and free and clear
of all Liens imposed by the Company. The Company has reserved from its duly authorized capital
stock the maximum number of shares of Common Stock issuable pursuant to this Agreement and
the Warrants. The Company has prepared and filed the Registration Statement in conformity
with the requirements of the Securities Act, which Registration Statement became effective
on January 23, 2025, including the Prospectus, and such amendments and supplements thereto
as may have been required to the date of this Agreement. The Registration Statement is effective
under the Securities Act and no stop order preventing or suspending the effectiveness of
the Registration Statement or suspending or preventing the use of the Preliminary Prospectus
or the Prospectus has been issued by the Commission and no proceedings for that purpose have
been instituted or, to the knowledge of the Company, are threatened by the Commission. The
Company, if required by the rules and regulations of the Commission, shall file the Prospectus
with the Commission pursuant to Rule 424(b). At the time the Registration Statement and any
amendments thereto became effective as determined under the Securities Act, at the date of
this Agreement and at the Closing Date, the Registration Statement and any amendments thereto
conformed and will conform in all material respects to the requirements of the Securities
Act and did not and will not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the statements therein
not misleading; and the Prospectus and any amendments or supplements thereto, at the time
the Preliminary Prospectus, the Prospectus or any amendment or supplement thereto was issued
and at the Closing Date, conformed and will conform in all material respects to the requirements
of the Securities Act and did not and will not contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading. |
| (h) | Capitalization.
The capitalization of the Company as of the date hereof is as set forth in the SEC Reports,
which SEC Reports shall also include the number of shares of Common Stock owned beneficially,
and of record, by Affiliates of the Company as of the date hereof. Except as set forth in
the SEC Reports and Schedule 3.1(h), the Company has not issued any shares since its most
recently filed periodic report under the Exchange Act. No Person has any right of first refusal,
preemptive right, right of participation, or any similar right to participate in the transactions
contemplated by the Transaction Documents. Except as set forth in the SEC Reports there are
no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any
character whatsoever relating to, or securities, rights or obligations convertible into or
exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire,
any shares of Common Stock or capital stock of any Subsidiary, or contracts, commitments,
understandings or arrangements by which the Company or any Subsidiary is or may become bound
to issue additional shares of Common Stock, Common Stock Equivalents or capital stock of
any Subsidiary. The issuance and sale of the Securities will not obligate the Company or
any Subsidiary to issue shares of Common Stock or other securities to any Person (other than
the Purchasers). Except as set forth in the SEC Reports there are no outstanding securities
or instruments of the Company or any Subsidiary with any provision that adjusts the exercise,
conversion, exchange or reset price under any of such securities. There are no outstanding
securities or instruments of the Company or any Subsidiary that contain any redemption or
similar provisions, and there are no contracts, commitments, understandings or arrangements
by which the Company or any Subsidiary is or may become bound to redeem a security of the
Company or such Subsidiary. The Company does not have any share appreciation rights or “phantom
share” plans or agreements or any similar plan or agreement. All of the outstanding
shares of the Company are duly authorized, validly issued, fully paid and non-assessable,
have been issued in compliance with all federal and state securities laws where applicable,
and none of such outstanding shares was issued in violation of any preemptive rights or similar
rights to subscribe for or purchase securities. Except for the Required Approvals, no further
approval or authorization of any stockholder, the Board of Directors or others is required
for the issuance and sale of the Securities. There are no stockholders agreements, voting
agreements or other similar agreements with respect to the Company’s share capital
to which the Company is a party or, to the knowledge of the Company, between or among any
of the Company’s stockholders. |
| (i) | SEC
Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements
and other documents required to be filed by the Company under the Securities Act and the
Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the one year preceding
the date hereof (or such shorter period as the Company was required by law or regulation
to file such materials) (the foregoing materials, including the exhibits thereto and documents
incorporated by reference therein, together with the Preliminary Prospectus and the Prospectus,
being collectively referred to herein as the “SEC Reports”) on a timely
basis or has received a valid extension of such time of filing and has filed any such SEC
Reports prior to the expiration of any such extension. As of their respective dates, the
SEC Reports complied in all material respects with the requirements of the Securities Act
and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any
untrue statement of a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. In addition, any further documents so filed and
incorporated by reference to the Prospectus, when such documents are filed with the Commission,
will conform in all material respects to the requirements of the Exchange Act and the applicable
rules and regulations, as applicable, and will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein, in light
of the circumstances under which they were made not misleading. The financial statements
of the Company included in the SEC Reports comply in all material respects with applicable
accounting requirements and the rules and regulations of the Commission with respect thereto
as in effect at the time of filing. Such financial statements have been prepared in accordance
with GAAP, except as may be otherwise specified in such financial statements or the notes
thereto and except that unaudited financial statements may not contain all footnotes required
by GAAP, and fairly present in all material respects the financial position of the Company
and its consolidated Subsidiaries as of and for the dates thereof and the results of operations
and cash flows for the periods then ended, subject, in the case of unaudited statements,
to normal, immaterial, year-end audit adjustments. |
| (j) | Material
Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest
audited financial statements included within the SEC Reports, except as set forth in the
SEC Reports, (i) there has been no event, occurrence or development that has had or that
could reasonably be expected to result in a Material Adverse Effect, (ii) the Company has
not incurred any liabilities (contingent or otherwise) other than (A) trade payables and
accrued expenses incurred in the ordinary course of business consistent with past practice
and strategic acquisitions and (B) liabilities not required to be reflected in the Company’s
financial statements pursuant to GAAP or disclosed in filings made with the Commission, (iii)
the Company has not altered its method of accounting, (iv) the Company has not declared or
made any dividend or distribution of cash or other property to its stockholders or purchased,
redeemed or made any agreements to purchase or redeem any of its shares and (v) the Company
has not issued any equity securities to any officer, director or Affiliate, except pursuant
to existing Company share option plans. The Company does not have pending before the Commission
any request for confidential treatment of information. Except for the issuance of the Securities
contemplated by this Agreement or as set forth in the SEC Reports, no event, liability, fact,
circumstance, occurrence or development has occurred or exists or is reasonably expected
to occur or exist with respect to the Company or its Subsidiaries or their respective businesses,
properties, operations, assets or financial condition that would be required to be disclosed
by the Company under applicable securities laws at the time this representation is made or
deemed made that has not been publicly disclosed at least one (1) Trading Day prior to the
date that this representation is made. |
| (k) | Litigation.
There is no action, suit, inquiry, notice of violation, proceeding or investigation pending
or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary
or any of their respective properties before or by any court, arbitrator, governmental or
administrative agency or regulatory authority (federal, state, county, local or foreign)
(collectively, an “Action”) which (i) adversely affects or challenges
the legality, validity or enforceability of any of the Transaction Documents, the Shares
or the Warrant Shares; or (ii) could, if there were an unfavorable decision, have or reasonably
be expected to result in a Material Adverse Effect. Neither the Company nor any Subsidiary,
nor any officer thereof, is the subject of any Action involving a claim of violation of or
liability under federal or state securities laws or a claim of breach of fiduciary duty.
No director of the Company or any Subsidiary is the subject of any Action involving a claim
of violation of or liability under federal or state securities laws or a claim of breach
of fiduciary duty, which could result in a Material Adverse Effect. There has not been, and
to the knowledge of the Company, there is not pending or contemplated, any investigation
by the Commission involving the Company or any current or former director or officer of the
Company. The Commission has not issued any stop order or other order suspending the effectiveness
of any registration statement filed by the Company or any Subsidiary under the Exchange Act
or the Securities Act. |
| (l) | Labor
Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with
respect to any of the employees of the Company, which could reasonably be expected to result
in a Material Adverse Effect. None of the Company’s or its Subsidiaries’ employees
is a member of a union that relates to such employee’s relationship with the Company
or such Subsidiary, and neither the Company nor any of its Subsidiaries is a party to a collective
bargaining agreement, and the Company and its Subsidiaries believe that their relationships
with their employees are good. To the knowledge of the Company, no executive officer of the
Company or any Subsidiary, is, or is now expected to be, in violation of any material term
of any employment contract, confidentiality, disclosure or proprietary information agreement
or non-competition agreement, or any other contract or agreement or any restrictive covenant
in favor of any third party, and the continued employment of each such executive officer
does not subject the Company or any of its Subsidiaries to any liability with respect to
any of the foregoing matters. The Company and its Subsidiaries are in compliance with all
applicable U.S. federal, state, local and foreign laws and regulations relating to employment
and employment practices, terms and conditions of employment and wages and hours, except
where the failure to be in compliance could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect. |
| (m) | Compliance.
Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no
event has occurred that has not been waived that, with notice or lapse of time or both, would
result in a default by the Company or any Subsidiary under), nor has the Company or any Subsidiary
received notice of a claim that it is in default under or that it is in violation of, any
indenture, loan or credit agreement or any other agreement or instrument to which it is a
party or by which it or any of its properties is bound (whether or not such default or violation
has been waived), (ii) is in violation of any judgment, decree or order of any court, arbitrator
or other governmental authority or (iii) is or has been in violation of any statute, rule,
ordinance or regulation of any governmental authority, including without limitation all foreign,
federal, state and local laws relating to taxes, environmental protection, occupational health
and safety, product quality and safety and employment and labor matters, except in each case
of (i), (ii) and (iii) as could not have or reasonably be expected to result in a Material
Adverse Effect. |
| (n) | Environmental
Laws. The Company and its Subsidiaries (i) are in compliance with all applicable federal,
state, local and foreign laws relating to pollution or protection of human health or the
environment (including ambient air, surface water, groundwater, land surface or subsurface
strata), including laws relating to emissions, discharges, releases or threatened releases
of chemicals, pollutants, contaminants, or toxic or hazardous substances or wastes (collectively,
“Hazardous Materials”) into the environment, or otherwise relating to
the manufacture, processing, distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Materials, as well as all authorizations, codes, decrees, demands,
or demand letters, injunctions, judgments, licenses, notices or notice letters, orders, permits,
plans or regulations, issued, entered, promulgated or approved thereunder (“Environmental
Laws”); (ii) have received all permits, licenses or other approvals required of
them under applicable Environmental Laws to conduct their respective businesses; and (iii)
are in compliance with all terms and conditions of any such permit, license or approval where
in each clause (i), (ii) and (iii), the failure to so comply would be reasonably expected
to have, individually or in the aggregate, a Material Adverse Effect. |
| (o) | Regulatory
Permits. The Company and the Subsidiaries possess all certificates, authorizations and
permits issued by the appropriate federal, state, local or foreign regulatory authorities
necessary to conduct their respective businesses as described in the SEC Reports, except
where the failure to possess such certificates, authorizations or permits would not reasonably
be expected to result in a Material Adverse Effect (“Material Permits”),
and neither the Company nor any Subsidiary has received any notice of proceedings relating
to the revocation or modification of any Material Permit. |
| (p) | Title
to Assets. Except as would not reasonably be expected to have a Material Adverse Effect,
the Company and the Subsidiaries have good and marketable title in fee simple to all real
property owned by them and good and marketable title in all personal property owned by them
that is material to the business of the Company and the Subsidiaries, in each case free and
clear of all Liens, except for (i) Liens as do not materially affect the value of such property
and do not materially interfere with the use made and proposed to be made of such property
by the Company and the Subsidiaries and (ii) Liens for the payment of federal, state or other
taxes, for which appropriate reserves have been made therefor in accordance with GAAP and,
the payment of which is neither delinquent nor subject to penalties. Any real property and
facilities held under lease by the Company and the Subsidiaries are held by them under valid,
subsisting and enforceable leases with which the Company and the Subsidiaries are in compliance
in all material respects. |
| (q) | Intellectual
Property. The Company and the Subsidiaries have, or have rights to use, all patents,
patent applications, trademarks, trademark applications, service marks, trade names, trade
secrets, inventions, copyrights, licenses and other intellectual property rights and similar
rights necessary or required for use in connection with their respective businesses as described
in the SEC Reports and which the failure to so have could have a Material Adverse Effect
(collectively, the “Intellectual Property Rights”). None of, and neither
the Company nor any Subsidiary has received a notice (written or otherwise) that any of,
the Intellectual Property Rights has expired, terminated or been abandoned, or is expected
to expire or terminate or be abandoned, within two (2) years from the date of this Agreement
except as would not reasonably be expected to have a Material Adverse Effect. Neither the
Company nor any Subsidiary has received, since the date of the latest audited financial statements
included within the SEC Reports, a written notice of a claim or otherwise has any knowledge
that the Intellectual Property Rights violate or infringe upon the rights of any Person,
except as could not have or reasonably be expected to not have a Material Adverse Effect.
To the knowledge of the Company, all such Intellectual Property Rights are enforceable and
there is no existing infringement by another Person of any of the Intellectual Property Rights.
The Company and its Subsidiaries have taken reasonable security measures to protect the secrecy,
confidentiality and value of all of their intellectual properties, except where failure to
do so could not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. The Company has no knowledge of any facts that would preclude it from having
valid license rights or clear title to the Intellectual Property Rights. The Company has
no knowledge that it lacks or will be unable to obtain any rights or licenses to use all
Intellectual Property Rights that are necessary to conduct its business. |
| (r) | Insurance.
The Company and the Subsidiaries are insured by insurers of recognized financial responsibility
against such losses and risks and in such amounts as are prudent and customary in the businesses
in which the Company and the Subsidiaries are engaged, including, but not limited to, directors
and officers insurance coverage. Neither the Company nor any Subsidiary has any reason to
believe that it will not be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as may be necessary
to continue its business without a significant increase in cost. |
| (s) | Transactions
with Affiliates and Employees. Except as set forth in the SEC Reports, 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 or a Subsidiary and (iii) other employee benefits,
including equity awards under any equity incentive plan of the Company. |
| (t) | Sarbanes-Oxley;
Internal Accounting Controls. Except as set forth in the SEC Reports, the Company and
the Subsidiaries are in material compliance with any and all applicable requirements of the
Sarbanes-Oxley Act of 2002 that are effective as of the date hereof, and any and all applicable
rules and regulations promulgated by the Commission thereunder that are effective as of the
date hereof and as of the Closing Date. The Company and the Subsidiaries maintain a system
of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions
are executed in accordance with management’s general or specific authorizations, (ii)
transactions are recorded as necessary to permit preparation of financial statements in conformity
with GAAP and to maintain asset accountability, (iii) access to assets is permitted only
in accordance with management’s general or specific authorization, and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The Company and the Subsidiaries
have established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e)
and 15d-15(e)) for the Company and the Subsidiaries and designed such disclosure controls
and procedures to ensure that information required to be disclosed by the Company in the
reports it files or submits under the Exchange Act is recorded, processed, summarized and
reported, within the time periods specified in the Commission’s rules and forms. The
Company’s certifying officers have evaluated the effectiveness of the disclosure controls
and procedures of the Company and the Subsidiaries as of the end of the period covered by
the most recently filed Form 10-K under the Exchange Act (such date, the “Evaluation
Date”). The Company presented in its most recently filed Form 10-K under the Exchange
Act the conclusions of the certifying officers about the effectiveness of the disclosure
controls and procedures based on their evaluations as of the Evaluation Date. Since the Evaluation
Date, there have been no changes in the internal control over financial reporting (as such
term is defined in the Exchange Act) that have materially affected, or is reasonably likely
to materially affect, the internal control over financial reporting of the Company and its
Subsidiaries. |
| (u) | Certain
Fees. Except as set forth in the Preliminary Prospectus and Prospectus, no brokerage
or finder’s fees or commissions are or will be payable by the Company or any Subsidiary
to any broker, financial advisor or consultant, finder, placement agent, investment banker,
bank or other Person with respect to the transactions contemplated by the Transaction Documents
(for the avoidance of doubt, the foregoing shall not include any fees and/or commissions
owed to the Transfer Agent). Other than for Persons engaged by any Purchaser, if any, the
Purchasers shall have no obligation with respect to any fees or with respect to any claims
made by or on behalf of other Persons for fees of a type contemplated in this Section that
may be due in connection with the transactions contemplated by the Transaction Documents. |
| (v) | Investment
Company. The Company is not, and immediately after receipt of payment for the Securities,
will not be, an “investment company” within the meaning of the Investment Company
Act of 1940, as amended. The Company shall conduct its business in a manner so that it will
not become an “investment company” subject to registration under the Investment
Company Act of 1940, as amended. |
| (w) | Registration
Rights. Except as set forth in the SEC Reports and Schedule 3.1(W), no Person has any
right to cause the Company or any Subsidiary to effect the registration under the Securities
Act of any securities of the Company or any Subsidiary. |
| (x) | Listing
and Maintenance Requirements. The shares of Common Stock are registered pursuant to Section
12(b) or 12(g) of the Exchange Act, and the Company has taken no action designed to, or which
to its knowledge is likely to have the effect of, terminating the registration of the Common
Stock under the Exchange Act nor has the Company received any notification that the Commission
is contemplating terminating such registration, except as described in the Preliminary Prospectus
and the Prospectus. The Company has not, in the 12 months preceding the date hereof, received
notice from any Trading Market on which the Common Stock is or has been listed or quoted
to the effect that the Company is not in compliance with the listing or maintenance requirements
of such Trading Market. The Common Stock is currently eligible for electronic transfer through
The Depository Trust Company or another established clearing corporation and the Company
is current in payment of the fees to The Depository Trust Company (or such other established
clearing corporation) in connection with such electronic transfer. |
| (y) | Application
of Takeover Protections. The Company and the Board of Directors have taken all necessary
action, if any, in order to render inapplicable any control share acquisition, business combination,
poison pill (including any distribution under a rights agreement) or other similar anti-takeover
provision under the Company’s certificate of incorporation or the laws of its state
of incorporation that is or could become applicable to the Purchasers as a result of the
Purchasers and the Company fulfilling their obligations or exercising their rights under
the Transaction Documents, including without limitation as a result of the Company’s
issuance of the Securities and the Purchasers’ ownership of the Securities. |
| (z) | Disclosure.
Except with respect to the material terms and conditions of the transactions contemplated
by the Transaction Documents, the Company confirms that neither it nor any other Person acting
on its behalf has provided any of the Purchasers or their agents or counsel with any information
that it believes constitutes or might constitute material, non-public information which is
not otherwise disclosed in the Preliminary Prospectus or the Prospectus. The Company understands
and confirms that the Purchasers will rely on the foregoing representation in effecting transactions
in securities of the Company. All of the disclosure furnished by or on behalf of the Company
to the Purchasers regarding the Company and its Subsidiaries, their respective businesses
and the transactions contemplated hereby, including the Disclosure Schedules to this Agreement,
is true and correct in all material respects and does not contain any untrue statement of
a material fact or omit to state any material fact necessary in order to make the statements
made therein, in the light of the circumstances under which they were made, not misleading.
The press releases disseminated by the Company during the twelve (12) months preceding the
date of this Agreement taken as a whole do not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which they were made
and when made, not misleading. The Company acknowledges and believes, to its best knowledge,
that no Purchaser makes or has made any representations or warranties with respect to the
transactions contemplated hereby other than those specifically set forth in Section 3.2 hereof. |
| (aa) | No
Integrated Offering. Assuming the accuracy of the Purchasers’ representations and
warranties set forth in Section 3.2, neither the Company, nor any of its Affiliates, nor
any Person acting on its or their behalf has, directly or indirectly, made any offers or
sales of any security or solicited any offers to buy any security, under circumstances that
would cause this offering of the Securities to be integrated with prior offerings by the
Company for purposes of any applicable stockholder approval provisions of any Trading Market
on which any of the securities of the Company are listed or designated. |
| (bb) | Solvency.
Except as described in the Preliminary Prospectus and the Prospectus, based on the consolidated
financial condition of the Company as of the Closing Date, after giving effect to the receipt
by the Company of the proceeds from the sale of the Securities hereunder, (i) the fair saleable
value of the Company’s assets exceeds the amount that will be required to be paid on
or in respect of the Company’s existing debts and other liabilities (including known
contingent liabilities) as they mature, (ii) the Company’s assets do not constitute
unreasonably small capital to carry on its business as now conducted and as proposed to be
conducted including its capital needs taking into account the particular capital requirements
of the business conducted by the Company, consolidated and projected capital requirements
and capital availability thereof, and (iii) the current cash flow of the Company, together
with the proceeds the Company would receive, were it to liquidate all of its assets, after
taking into account all anticipated uses of the cash, would be sufficient to pay all amounts
on or in respect of its liabilities when such amounts are required to be paid. Except as
described in the Preliminary Prospectus and the Prospectus, 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). Except as described
in the Preliminary Prospectus and the Prospectus, the Company has no knowledge of any facts
or circumstances which lead it to believe that it will file for reorganization or liquidation
under the bankruptcy or reorganization laws of any jurisdiction within one year from the
Closing Date. The SEC Reports set forth all outstanding secured and unsecured Indebtedness
of the Company or any Subsidiary, or for which the Company or any Subsidiary has commitments.
For the purposes of this Agreement, “Indebtedness” means (x) any liabilities
for borrowed money or amounts owed by the Company in excess of $50,000 (other than trade
accounts payable incurred in the ordinary course of business), (y) all guaranties, endorsements
and other contingent obligations in respect of indebtedness of others to third parties, whether
or not the same are or should be reflected in the Company’s consolidated balance sheet
(or the notes thereto), except guaranties by endorsement of negotiable instruments for deposit
or collection or similar transactions in the ordinary course of business; and (z) the present
value of any lease payments in excess of $50,000 due under leases required to be capitalized
in accordance with GAAP. Neither the Company nor any Subsidiary is in default with respect
to any Indebtedness. |
| (cc) | Tax
Compliance. Except for matters that would not, individually or in the aggregate, have
or reasonably be expected to result in a Material Adverse Effect, the Company and its Subsidiaries
each (i) has made or filed all federal, state and local income and all foreign income and
franchise tax returns, reports and declarations required by any jurisdiction to which it
is subject, (ii) has paid all taxes and other governmental assessments and charges, fines
or penalties that are material in amount, shown or determined to be due on such returns,
reports and declarations and (iii) has set aside on its financial statements provision reasonably
adequate for the payment of all material tax liability of which has not been finally determined
and all material taxes for periods subsequent to the periods to which such returns, reports
or declarations apply. There are no unpaid taxes in any material amount claimed to be due
by the taxing authority of any jurisdiction, and the officers of the Company or of any Subsidiary
know of no basis for any such claim. |
| (dd) | Foreign
Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the
Company or any Subsidiary, any agent or other person acting on behalf of the Company or any
Subsidiary, has (i) directly or indirectly, used any funds for unlawful contributions, gifts,
entertainment or other unlawful expenses related to foreign or domestic political activity,
(ii) made any unlawful payment to foreign or domestic government officials or employees or
to any foreign or domestic political parties or campaigns from corporate funds, (iii) failed
to disclose fully any contribution made by the Company or any Subsidiary (or made by any
person acting on its behalf of which the Company is aware) which is in violation of law,
or (iv) violated in any material respect any provision of FCPA. |
| (ee) | Accountants.
The Company’s independent registered public accounting firm is as set forth in the
Preliminary Prospectus and Prospectus. To the knowledge and belief of the Company, such accounting
firm (i) is a registered public accounting firm as required by the Exchange Act and (ii)
shall express its opinion with respect to the financial statements to be included in the
Company’s Annual Report for the fiscal year ended December 31, 2024. |
| (ff) | Acknowledgment
Regarding Purchasers’ Purchase of Securities. The Company acknowledges and agrees
that each of the Purchasers is acting solely in the capacity of an arm’s length purchaser
with respect to the Transaction Documents and the transactions contemplated thereby. The
Company further acknowledges that no Purchaser is acting as a financial advisor or fiduciary
of the Company (or in any similar capacity) with respect to the Transaction Documents and
the transactions contemplated thereby and any advice given by any Purchaser or any of their
respective representatives or agents in connection with the Transaction Documents and the
transactions contemplated thereby is merely incidental to the Purchasers’ purchase
of the Securities. The Company further represents to each Purchaser that the Company’s
decision to enter into this Agreement and the other Transaction Documents has been based
solely on the independent evaluation of the transactions contemplated hereby by the Company
and its representatives. |
| (gg) | Acknowledgment
Regarding Purchaser’s Trading Activity. Other than as contemplated herein, it is
understood and acknowledged by the Company that: (i) none of the Purchasers has been asked
by the Company to agree, nor has any Purchaser agreed, to desist from purchasing or selling,
long and/or short, securities of the Company, or “derivative” securities based
on securities issued by the Company or to hold the Securities for any specified term; (ii)
past or future open market or other transactions by any Purchaser, specifically including,
without limitation, Short Sales or “derivative” transactions, before or after
the closing of this or future securities offering, may negatively impact the market price
of the Company’s publicly-traded securities; (iii) any Purchaser, and counter-parties
in “derivative” transactions to which any such Purchaser is a party, directly
or indirectly, presently may have a “short” position in the Common Stock, and
(iv) each Purchaser shall not be deemed to have any affiliation with or control over any
arm’s length counter-party in any “derivative” transaction. The Company
further understands and acknowledges that (y) one or more Purchasers may engage in hedging
activities at various times during the period that the Securities are outstanding, and (z)
such hedging activities (if any) could reduce the value of the existing shareholders’
equity interests in the Company at and after the time that the hedging activities are being
conducted. The Company acknowledges that such aforementioned hedging activities do not constitute
a breach of any of the Transaction Documents. |
| (hh) | Regulation
M Compliance. The Company has not, and to its knowledge no one acting on its behalf has,
(i) taken, directly or indirectly, any action designed to cause or to result in the stabilization
or manipulation of the price of any security of the Company to facilitate the sale or resale
of any of the shares of Common Stock, (ii) sold, bid for, purchased, or, paid any compensation
for soliciting purchases of, any of the shares of Common Stock, or (iii) paid or agreed to
pay to any Person any compensation for soliciting another to purchase any other securities
of the Company, other than, in the case of clauses (ii) and (iii), compensation paid to the
Company’s placement agent in connection with the placement of the shares of Common
Stock. |
| (ii) | Regulatory.
Except as described in the Registration Statement and the Prospectus, as applicable, the
Company and its Subsidiaries (i) are and at all times have been in material compliance with
all statutes, rules and regulations applicable to its business (collectively, the “Applicable
Laws”); (ii) have not received any notice from any court or arbitrator or governmental
or regulatory authority or third party alleging or asserting noncompliance with any Applicable
Laws or any licenses, exemptions, certificates, approvals, clearances, authorizations, permits,
registrations and supplements or amendments thereto required by any such Applicable Laws
(“Authorizations”); (iii) possess all material Authorizations and such
Authorizations are valid and in full force and effect and are not in violation of any term
of any such Authorizations; (iv) have not received written notice of any claim, action, suit,
proceeding, hearing, enforcement, investigation arbitration or other action from any court
or arbitrator or governmental or regulatory authority or third party alleging that any product
operation or activity is in violation of any Applicable Laws or Authorizations nor is any
such claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or
other action threatened; (v) have not received any written notice that any court or arbitrator
or governmental or regulatory authority has taken, is taking or intends to take, action to
limit, suspend, materially modify or revoke any Authorizations nor is any such limitation,
suspension, modification or revocation threatened; (vi) have filed, obtained, maintained
or submitted all material reports, documents, forms, notices, applications, records, claims,
submissions and supplements or amendments as required by any Applicable Laws or Authorizations
and that all such reports, documents, forms, notices, applications, records, claims, submissions
and supplements or amendments were complete and accurate on the date filed (or were corrected
or supplemented by a subsequent submission); and (vii) are not a party to any corporate integrity
agreements, monitoring agreements, consent decrees, settlement orders, or similar agreements
with or imposed by any governmental or regulatory authority. |
| (jj) | Data
Privacy. To Company’s knowledge, the Company has and is currently taking the measures
required by any and all applicable law or any applicable binding directive, guidelines or
requirements of a regulator in all relevant jurisdictions to protect the privacy of any Personal
Information (as defined below) (the “Data Privacy Laws”) in connection
with Company’s collection, storage, use, transfer of, (a) any personally identifiable
information from any individuals, including name, address, telephone number, email address,
financial account number, government-issued identifier, and any other data used or intended
to be used to identify, contact or precisely locate a person, (b) any information from or
about an individual whose use, aggregation, holding or management is restricted under any
applicable Law, and (c) Internet Protocol address or other persistent identifier (collectively
“Personal Information”) to maintain in confidence such Personal Information.
To Company’s knowledge, the Company has at all times complied with the Data Privacy
Laws, and is in compliance with any contractual obligations, if any, relating to privacy,
data protection, and the collection, storage and use of the Personal Information, if any.
No claims have been asserted or, to the best knowledge of the Company, are threatened against
the Company by any Person alleging a violation of any Person’s or any entity’s
privacy, personal or confidentiality rights under the Data Privacy Laws and/or contractual
obligations relating to privacy. To the best knowledge of the Company, there has been no
unauthorized access to or other misuse of Personal Information. The Company has never reported
a data breach to any relevant regulator in any jurisdiction. |
| (kk) | Material
Agreements. The agreements and documents described in the Registration Statement or Prospectus
conform in all material respects to the descriptions thereof contained or incorporated by
reference therein, and were filed on a timely basis with the Commission and there are no
agreements or other documents required by the Securities Act and the rules and regulations
thereunder to be described in the Prospectus or to be filed with the Commission as exhibits
to the Registration Statement or to be incorporated by reference in the Registration Statement
or Prospectus, that have not been so described or filed or incorporated by reference. |
| (ll) | Stock
Option Plans. Each stock option granted by the Company under the Company’s stock
option plan was granted (i) in accordance with the terms of the Company’s stock option
plan and (ii) with an exercise price at least equal to the fair market value of the Common
Stock on the date such stock option would be considered granted under GAAP and applicable
law. No stock option granted under the Company’s stock option plan has been backdated.
The Company has not knowingly granted, and there is no and has been no Company policy or
practice to knowingly grant, stock options prior to, or otherwise knowingly coordinate the
grant of stock options with, the release or other public announcement of material information
regarding the Company or its Subsidiaries or their financial results or prospects. |
| (mm) | Cybersecurity.
(i)(x) To the knowledge of the Company, there has been no security breach or other compromise
of or relating to any of the Company’s or any Subsidiary’s information technology
and computer systems, networks, hardware, software, data (including the data of its respective
customers, employees, suppliers, vendors and any third party data maintained by or on behalf
of it), equipment or technology (collectively, “IT Systems and Data”)
and (y) the Company and the Subsidiaries have not been notified of, any security breach or
other compromise to its IT Systems and Data; (ii) the Company and the Subsidiaries are presently
in compliance with all applicable laws or statutes and all judgments, orders, rules and regulations
of any court or arbitrator or governmental or regulatory authority, internal policies and
contractual obligations relating to the privacy and security of IT Systems and Data and to
the protection of such IT Systems and Data from unauthorized use, access, misappropriation
or modification, except as would not, individually or in the aggregate, have a Material Adverse
Effect; (iii) the Company and the Subsidiaries have implemented and maintained commercially
reasonable safeguards to maintain and protect its material confidential information and the
integrity, continuous operation, redundancy and security of all IT Systems and Data; and
(iv) the Company and the Subsidiaries have implemented backup and disaster recovery technology
consistent with commercially reasonable industry standards and practices. |
| (nn) | Office
of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company’s
knowledge, any director, officer, agent, employee or affiliate of the Company or any Subsidiary
is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control
of the U.S. Treasury Department (“OFAC”). |
| (oo) | U.S.
Real Property Holding Corporation. The Company is not and has never been a U.S. real
property holding corporation within the meaning of Section 897 of the Internal Revenue Code
of 1986, as amended, and the Company shall so certify upon Purchaser’s request. |
| (pp) | 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. |
| (qq) | Money
Laundering. The operations of the Company and its Subsidiaries are and have been conducted
at all times in compliance with applicable financial record-keeping and reporting requirements
of the Currency and Foreign Transactions Reporting Act of 1970, as amended, applicable money
laundering statutes and applicable rules and regulations thereunder (collectively, the “Money
Laundering Laws”), and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company or any Subsidiary
with respect to the Money Laundering Laws is pending or, to the knowledge of the Company
or any Subsidiary, threatened. |
| (rr) | Promotional
Stock Activities. Neither the Company nor any Subsidiary of the Company and none of their
respective officers, directors, managers, affiliates or agents have engaged in any stock
promotional activity that would constitute (i) a violation of the anti-fraud provisions of
the federal securities laws, (ii) violations of the anti-touting provisions, (iii) improper
“gun-jumping; or (iv) promotion without proper disclosure of compensation. |
| (ss) | Information
Technology. The Company’s and the Subsidiaries’ information technology assets
and equipment, computers, systems, networks, hardware, software, websites, applications,
and databases (collectively, “IT Systems”) operate and perform in all
material respects as required in connection with the operation of the business of the Company
and the Subsidiaries as currently conducted. The Company and the Subsidiaries maintain commercially
reasonable controls, policies, procedures, and safeguards to maintain and protect their material
confidential information and the integrity, continuous operation, redundancy and security
of all IT Systems and all personal, personally identifiable, sensitive, confidential or regulated
data (“Personal Data”) processed and stored thereon, and to the knowledge
of the Company, there have been no breaches, incidents, violations, outages, compromises
or unauthorized uses of or accesses to same, except for those that have been remedied without
material cost or liability or the duty to notify any other person, nor any incidents under
internal review or investigations relating to the same. The Company and the Subsidiaries
are presently in compliance in all material respects with all applicable laws or statutes
and all applicable judgments, orders, rules and regulations of any court or arbitrator or
governmental or regulatory authority, internal policies and contractual obligations relating
to the privacy and security of IT Systems and Personal Data and to the protection of such
IT Systems and Personal Data from unauthorized use, access, misappropriation or modification,
except for any such noncompliance that would not have a Material Adverse Effect. |
| (tt) | Emerging
Growth Company. From the time of the initial confidential submission of the Registration
Statement to the Commission (or, if earlier, the first date on which the Company engaged
directly in or through any Person authorized to act on its behalf in any Testing-the Waters
Communication) through the date of this Agreement, the Company has been and is an “emerging
growth company,” as defined in Section 2(a) of the Securities Act (an “Emerging
Growth Company”). “Testing-the-Waters Communication” means any oral
or written communication with potential investors undertaken in reliance on Section 5(d)
of the Securities Act. |
3.2
Representations and Warranties of the Purchasers. Each Purchaser, for itself and for no other Purchaser, hereby represents and
warrants as of the date hereof and as of the Closing Date to the Company as follows (unless as of a specific date therein, in which case
they shall be accurate as of such date):
| (a) | Organization;
Authority. Such Purchaser is either an individual or an entity duly incorporated or formed,
validly existing and in good standing under the laws of the jurisdiction of its incorporation
or formation with full right, corporate, partnership limited liability company or similar
power and authority to enter into and to consummate the transactions contemplated by the
Transaction Documents and otherwise to carry out its obligations hereunder and thereunder.
The execution and delivery of the Transaction Documents and performance by such Purchaser
of the transactions contemplated by the Transaction Documents have been duly authorized by
all necessary corporate, partnership, limited liability company or similar action, as applicable,
on the part of such Purchaser. Each Transaction Document to which it is a party has been
duly executed by such Purchaser, and when delivered by such Purchaser in accordance with
the terms hereof, will constitute the valid and legally binding obligation of such Purchaser,
enforceable against it in accordance with its terms, except: (i) as limited by general equitable
principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws
of general application affecting enforcement of creditors’ rights generally, (ii) as
limited by laws relating to the availability of specific performance, injunctive relief or
other equitable remedies and (iii) insofar as indemnification and contribution provisions
may be limited by applicable law. |
| (b) | Understandings
or Arrangements. Such Purchaser is acquiring the Securities as principal for its own
account and has no direct or indirect arrangement or understandings with any other persons
to distribute or regarding the distribution of such Securities (this representation and warranty
not limiting such Purchaser’s right to sell the Securities pursuant to the Registration
Statement or otherwise in compliance with applicable federal and state securities laws). |
| (c) | Experience
of Such Purchaser. Such Purchaser, either alone or together with its representatives,
has such knowledge, sophistication and experience in business and financial matters so as
to be capable of evaluating the merits and risks of the prospective investment in the Securities,
and has so evaluated the merits and risks of such investment. Such Purchaser is able to bear
the economic risk of an investment in the Securities and, at the present time, is able to
afford a complete loss of such investment. |
| (d) | Access
to Information. Such Purchaser acknowledges that it has had the opportunity to review
the Transaction Documents (including all exhibits and schedules thereto), the Registration
Statement and the SEC Reports and has been afforded (i) the opportunity to ask such questions
as it has deemed necessary of, and to receive answers from, representatives of the Company
concerning the terms and conditions of the offering of the Securities and the merits and
risks of investing in the Securities; (ii) access to information about the Company and its
financial condition, results of operations, business, properties, management and prospects
sufficient to enable it to evaluate its investment; and (iii) the opportunity to obtain such
additional information that the Company possesses or can acquire without unreasonable effort
or expense that is necessary to make an informed investment decision with respect to the
investment. Such Purchaser acknowledges and agrees that neither the Placement Agent nor any
Affiliate of the Placement Agent has provided such Purchaser with any information or advice
with respect to the Securities nor is such information or advice necessary or desired. Neither
the Placement Agent nor any Affiliate has made or makes any representation as to the Company
or the quality of the Securities and the Placement Agent and any Affiliate may have acquired
non-public information with respect to the Company which such Purchaser agrees need not be
provided to it. In connection with the issuance of the Securities to such Purchaser, neither
the Placement Agent nor any of its Affiliates has acted as a financial advisor or fiduciary
to such Purchaser. |
| (e) | Certain
Transactions and Confidentiality. Other than consummating the transactions contemplated
hereunder, such Purchaser has not, nor has any Person acting on behalf of or pursuant to
any understanding with such Purchaser, directly or indirectly executed any purchases or sales,
including Short Sales, of the securities of the Company during the period commencing as of
the time that such Purchaser first received a term sheet (written or oral) from the Company
or any other Person representing the Company setting forth the material terms, which terms
include definitive pricing terms, of the transactions contemplated hereunder and ending immediately
prior to the execution hereof. Notwithstanding the foregoing, in the case of a Purchaser
that is a multi-managed investment vehicle whereby separate portfolio managers manage separate
portions of such Purchaser’s assets and the portfolio managers have no direct knowledge
of the investment decisions made by the portfolio managers managing other portions of such
Purchaser’s assets, the representation set forth above shall only apply with respect
to the portion of assets managed by the portfolio manager that made the investment decision
to purchase the Securities covered by this Agreement. Other than to other Persons party to
this Agreement or to such Purchaser’s representatives, including, without limitation,
its officers, directors, partners, legal and other advisors, employees, agents and Affiliates,
such Purchaser has maintained the confidentiality of all disclosures made to it in connection
with this transaction (including the existence and terms of this transaction). Notwithstanding
the foregoing, for the avoidance of doubt, nothing contained herein shall constitute a representation
or warranty, or preclude any actions, with respect to locating or borrowing shares order
to effect Short Sales or similar transactions in the future. |
| (f) | No
Voting Agreements. The Purchaser is not a party to any agreement or arrangement, whether
written or oral, between the Purchaser and any other Purchaser and any of the Company’s
stockholders as of the date hereof, regulating the management of the Company, the stockholders’
rights in the Company, the transfer of shares in the Company, including any voting agreements,
stockholder agreements or any other similar agreement even if its title is different or has
any other relations or agreements with any of the Company’s stockholders, directors
or officers. |
| (g) | Brokers.
Except as set forth in the SEC Reports or in the Preliminary Prospectus or Prospectus, no
agent, broker, investment banker, person or firm acting in a similar capacity on behalf of
or under the authority of the Purchaser is or will be entitled to any broker’s or finder’s
fee or any other commission or similar fee, directly or indirectly, for which the Company
or any of its Affiliates after the Closing could have any liabilities in connection with
this Agreement, any of the transactions contemplated by this Agreement, or on account of
any action taken by the Purchaser in connection with the transactions contemplated by this
Agreement. |
| (h) | Independent
Advice. Each Purchaser understands that nothing in this Agreement or any other materials
presented by or on behalf of the Company to the Purchaser in connection with the purchase
of the Securities constitutes legal, tax or investment advice. |
The
Company acknowledges and agrees that the representations contained in this Section 3.2 shall not modify, amend or affect such Purchaser’s
right to rely on the Company’s representations and warranties contained in this Agreement or any representations and warranties
contained in any other Transaction Document or any other document or instrument executed and/or delivered in connection with this Agreement
or the consummation of the transactions contemplated hereby. Notwithstanding the foregoing, for the avoidance of doubt, nothing contained
herein shall constitute a representation or warranty, or preclude any actions, except as set forth in this Agreement, with respect to
locating or borrowing shares in order to effect Short Sales or similar transactions in the future.
ARTICLE
IV.
OTHER AGREEMENTS OF THE PARTIES
4.1
Legends. The shares of Common Stock and, if all or any portion of a Warrant is exercised at a time when there is an effective
registration statement to cover the issuance or resale of the Warrant Shares or if the Warrant is exercised via cashless exercise, the
Warrant Shares shall be issued free of legends. If at any time following the date hereof the Registration Statement is not effective
or is not otherwise available for the issuance of the shares of Common Stock, the Warrants or the Warrant Shares, the Company shall immediately
notify the holders of the Warrants in writing that such registration statement is not then effective and thereafter shall promptly notify
such holders when the registration statement is effective again and available for the sale of the Shares, the Warrants or the Warrant
Shares (it being understood and agreed that the foregoing shall not limit the ability of the Company to issue, or any Purchaser to sell,
any of the Shares, the Warrants or the Warrant Shares in compliance with applicable federal and state securities laws). The Company shall
use commercially reasonable best efforts to keep a registration statement (including the Registration Statement) registering the issuance
of the Warrant Shares effective during the term of the Warrants.
4.2
Furnishing of Information; Public Information. Until the earliest of the time that (i) no Purchaser owns Securities, or (ii) the
Common Warrants have expired, the Company covenants to maintain the registration of the Common Stock under Section 12(b) or 12(g) of
the Exchange Act and to timely file (or obtain extensions in respect thereof and file within the applicable grace period) all reports
required to be filed by the Company after the date hereof pursuant to the Exchange Act, even if the Company is not then subject to the
reporting requirements of the Exchange Act.
4.3
Integration. The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security
(as defined in Section 2 of the Securities Act) that would be integrated with the offer or sale of the Securities for purposes of the
rules and regulations of any Trading Market such that it would require stockholder approval prior to the closing of such other transaction
unless stockholder approval is obtained before the closing of such subsequent transaction.
4.4
Securities Laws Disclosure; Publicity. The Company shall (a) by the Disclosure Time, issue a press release disclosing the material
terms of the transactions contemplated hereby, and (b) file a Current Report on Form 8-K, including the Transaction Documents as exhibits
thereto, with the Commission within the time required by the Exchange Act. From and after the issuance of such press release, the Company
represents to the Purchasers that it shall have publicly disclosed all material, non-public information delivered to any of the Purchasers
by the Company or any of its Subsidiaries or Affiliates, or any of their respective officers, directors, employees or agents, including,
without limitation, the Placement Agent, in connection with the transactions contemplated by the Transaction Documents. In addition,
effective upon the issuance of such press release, the Company acknowledges and agrees that any and all confidentiality or similar obligations
under any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors,
agents, employees or Affiliates, including, without limitation, the Placement Agent, on the one hand, and any of the Purchasers or any
of their Affiliates on the other hand, shall terminate and be of no further force or; provided, however, that no such termination
will affect the right of the Company to sue for any breach by any party (or parties) prior to termination. The Company and each Purchaser
shall consult with each other in issuing any other press releases with respect to the transactions contemplated hereby, and neither the
Company nor any Purchaser shall issue any such press release nor otherwise make any such public statement without the prior consent of
the Company, with respect to any press release of any Purchaser, or without the prior consent of each Purchaser, with respect to any
press release of the Company, which consent shall not unreasonably be withheld or delayed, except if such disclosure is required by law,
in which case the disclosing party shall promptly provide the other party with prior notice of such public statement or communication.
Notwithstanding the foregoing, the Company shall not publicly disclose the name of any Purchaser, or include the name of any Purchaser
in any filing with the Commission or any regulatory agency or Trading Market, without the prior written consent of such Purchaser, except
(a) as required by federal securities law in connection with the filing of final Transaction Documents with the Commission, and (b) to
the extent such disclosure is required by law or Trading Market regulations, in which case the Company shall provide the Purchasers with
prior notice of such disclosure permitted under this clause (b).
4.5
Stockholder Rights Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any other Person,
that any Purchaser is an “Acquiring Person” under any control share acquisition, business combination, poison pill
(including any distribution under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter adopted by
the Company, or that any Purchaser could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receiving
Securities under the Transaction Documents or under any other agreement between the Company and the Purchasers.
4.6
Non-Public Information. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction
Documents, which shall be disclosed pursuant to Section 4.4, the Company covenants and agrees that neither it, nor any other Person acting
on its behalf will provide any Purchaser or its agents or counsel with any information that the Company believes constitutes material
non-public information, unless prior thereto such Purchaser shall have entered into a written agreement with the Company regarding the
confidentiality and use of such information. The Company understands and confirms that each Purchaser shall be relying on the foregoing
covenant in effecting transactions in securities of the Company. To the extent that the Company, any of its Subsidiaries or any of their
respective officers, directors, agents, employees or Affiliates delivers any material, non-public information to a Purchaser without
such Purchaser’s consent, the Company hereby covenants and agrees that such Purchaser shall not have any duty of confidentiality
to the Company, any of its Subsidiaries, or any of their respective officers, directors, agents, employees or Affiliates, or a duty to
the Company, and of its Subsidiaries or any of their respective officers, directors, agents, employees or Affiliates not to trade on
the basis of, such material, non-public information, provided that the Purchaser shall remain subject to applicable law. To the extent
that any notice provided pursuant to any Transaction Document constitutes, or contains, material, non-public information regarding the
Company or any Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form
8-K. The Company understands and confirms that each Purchaser shall be relying on the foregoing covenant in effecting transactions in
securities of the Company.
4.7
Use of Proceeds. The Company shall use the net proceeds from the sale of the Securities hereunder for general corporate purposes
and other business matters, and shall not use such proceeds: (a) for the satisfaction of any portion of the Company’s debt (other
than as described above, Permissible Debt, payment of trade payables in the ordinary course of the Company’s business or repayment
of obligations outstanding as of the date of this Agreement consistent with prior practices), (b) for the redemption of any shares of
Common Stock or Common Stock Equivalents, (c) for the settlement of any outstanding litigation or (d) in violation of FCPA or OFAC regulations
or similar applicable regulations.
4.8
Indemnification of Purchasers. Subject to the provisions of this Section 4.8, the Company will indemnify and hold each Purchaser
and its directors, officers, stockholders, members, partners, employees and agents (and any other Persons with a functionally equivalent
role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls such Purchaser
(within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, stockholders,
agents, members, partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding
a lack of such title or any other title) of such controlling persons (each, a “Purchaser Party”) harmless from any
and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in
settlements, court costs and reasonable attorneys’ fees and costs of investigation that any such Purchaser Party may suffer or
incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company
in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser Party in any capacity (including
a Purchaser Party’s status as an investor), or any of them or their respective Affiliates, by the Company or any stockholder of
the Company who is not an Affiliate of such Purchaser Party, arising out of or relating to any of the transactions contemplated by the
Transaction Documents. For the avoidance of doubt, the indemnification provided herein is intended to, and shall also cover, direct claims
brought by the Company against the Purchaser Parties; provided, however, that such indemnification shall not cover any loss, claim, damage
or liability to the extent it is finally judicially determined to be attributable to any Purchaser Party’s breach of any of the
representations, warranties, covenants or agreements made by such Purchaser Party in any Transaction Document or any conduct by such
Purchaser Party which is finally judicially determined to constitute fraud, gross negligence or willful misconduct. If any action shall
be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall
promptly notify the Company in writing, and, except with respect to direct claims brought by the Company, the Company shall have the
right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the Purchaser Party. Any Purchaser Party
shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically
authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ
counsel or (iii) in such action there is, in the reasonable opinion of counsel to the applicable Purchaser Party (which may be internal
counsel), a material conflict on any material issue between the position of the Company and the position of such Purchaser Party, in
which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company
will not be liable to any Purchaser Party under this Agreement for any settlement by a Purchaser Party effected without the Company’s
prior written consent, which shall not be unreasonably withheld or delayed. In addition, if any Purchaser Party takes actions to collect
amounts due under any Transaction Documents or to enforce any provisions of any Transaction Documents, then the Company shall pay the
costs incurred by such Purchaser Party for such collection, enforcement or action, including, but not limited to, attorneys’ fees
and disbursements. The indemnification and other payment obligations required by this Section 4.8 shall be made by periodic payments
of the amount thereof during the course of the investigation, defense, collection, enforcement or action, as and when bills are received
or are incurred; provided, that if any Purchaser Party is finally judicially determined not to be entitled to indemnification
or payment under this Section 4.8, such Purchaser Party shall promptly reimburse the Company for any payments that are advanced under
this sentence. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of any Purchaser
Party against the Company or others and any liabilities the Company may be subject to pursuant to law.
4.9
Listing of Common Stock. The Company hereby agrees to use reasonable best efforts to maintain the listing or quotation of the
shares of Common Stock on each Trading Market on which each is currently listed, and concurrently with the Closing, the Company shall
apply to list or quote all of the Shares and Warrant Shares on such Trading Markets and promptly secure the listing of all of the Shares
and Warrant Shares on such Trading Markets. The Company further agrees, if the Company applies to have the Common Stock traded on any
other Trading Market, it will then include in such application all of the Shares and Warrant Shares, and will take such other action
as is necessary to cause all of the Shares and Warrant Shares to be listed or quoted on such other Trading Market as promptly as possible.
The Company will then take all action reasonably necessary to continue the listing and trading of the Common Stock on a Trading Market
and will comply in all material respects with the Company’s reporting, filing and other obligations under the bylaws or rules of
the Trading Market. The Company agrees to use reasonable efforts to maintain the eligibility of the Common Stock for electronic transfer
through the Depository Trust Company or another established clearing corporation, including, without limitation, by timely payment of
fees to the Depository Trust Company or such other established clearing corporation in connection with such electronic transfer.
4.10
Subsequent Equity Sales.
| (a) | From
the date hereof until forty-five (45) days after the Closing Date, without the prior written
consent of the Placement Agent, neither the Company nor any Subsidiary shall (i) issue, enter
into any agreement to issue, or announce the issuance or proposed issuance of any shares
of Common Stock or Common Stock Equivalents, other than an Exempt Issuance and as provided
on Schedule 4.10(a), or (ii) file any registration statement or amendment or supplement thereto,
other than the Prospectus; filing a registration statement on Form S-8 in connection with
any employee benefit plan; filing a Post-Effective Amendment to the Registration Statement;
filing a post-effective amendment or Prospectus Supplement to the registration statement
on Form S-1, dated October 8, 2024, relating to the B. Riley Purchase Agreement, provided
that any such Post-Effective Amendment, amendment or supplement is filed for the sole
purpose of maintaining an effective registration for the securities registered thereunder. |
| (b) | From
the date hereof until one hundred and eighty (180) days after the Closing Date, the Company
shall be prohibited from effecting or entering into an agreement to effect any issuance by
the Company or any of its Subsidiaries of shares of Common Stock or Common Stock Equivalents
(or a combination of units thereof) involving a Variable Rate Transaction. “Variable
Rate Transaction” means a transaction in which the Company (i) issues or sells
any debt or equity securities that are convertible into, exchangeable or exercisable for,
or include the right to receive additional shares of Common Stock either (A) at a conversion
price, exercise price or exchange rate or other price that is based upon and/or varies with
the trading prices of or quotations for the Common Stock at any time after the initial issuance
of such debt or equity securities, or (B) with a conversion, exercise or exchange price that
is subject to being reset at some future date after the initial issuance of such debt or
equity security or upon the occurrence of specified or contingent events directly or indirectly
related to the business of the Company or the market for shares of Common Stock or (ii) enters
into, or effects a transaction under, any agreement, including, but not limited to, an equity
line of credit or an “at-the-market offering”, whereby the Company may issue
securities at a future determined price regardless of whether shares pursuant to such agreement
have actually been issued and regardless of whether such agreement is subsequently canceled.
Notwithstanding anything contained in this Section 4.10, after the forty-fifth (45th)
day following the Closing, the Company may effectuate sales pursuant to its Common Stock
Purchase Agreement with B. Riley Principal Capital II, LLC, dated October 7, 2024 (the “B.
Riley Purchase Agreement”), provided such sales are at a price per share equal
to or greater than $2.50. |
| (c) | Notwithstanding
the foregoing, this Section 4.10 shall not apply in respect of an Exempt Issuance, except
that no Variable Rate Transaction shall be an Exempt Issuance. |
4.11
Equal Treatment of Purchasers. No consideration (including any modification of the Transaction Documents) shall be offered or
paid to any Person to amend or consent to a waiver or modification of any provision of the Transaction Documents unless the same consideration
is also offered to all of the parties to the Transaction Documents. For clarification purposes, this provision constitutes a separate
right granted to each Purchaser by the Company and negotiated separately by each Purchaser, and is intended for the Company to treat
the Purchasers as a class and shall not in any way be construed as the Purchasers acting in concert or as a group with respect to the
purchase, disposition or voting of the shares of Common Stock or otherwise.
4.12
Certain Transactions and Confidentiality. Each Purchaser, severally and not jointly with the other Purchasers, covenants that
neither it nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or sales, including
Short Sales of any of the Company’s securities during the period commencing with the execution of this Agreement and ending at
such time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as
described in Section 4.4. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the
transactions contemplated by this Agreement are publicly disclosed by the Company pursuant to the initial press release as described
in Section 4.4, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included
in the Disclosure Schedules. Notwithstanding the foregoing, and notwithstanding anything contained in this Agreement to the contrary,
the Company expressly acknowledges and agrees that (i) no Purchaser makes any representation, warranty or covenant hereby that it will
not engage in effecting transactions in any securities of the Company after the time that the transactions contemplated by this Agreement
are first publicly announced pursuant to the initial press release as described in Section 4.4, (ii) no Purchaser shall be restricted
or prohibited from effecting any transactions in any securities of the Company in accordance with applicable securities laws from and
after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release
as described in Section 4.4 and (iii) no Purchaser shall have any duty of confidentiality or duty not to trade in the securities of the
Company to the Company or its Subsidiaries after the issuance of the initial press release as described in Section 4.4. Notwithstanding
the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate
portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the
portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect
to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this
Agreement.
4.13
Exercise Procedures. The form of Notice of Exercise included in the Warrants set forth the totality of the procedures required
of the Purchasers in order to exercise the Warrants. No additional legal opinion, other information or instructions shall be required
of the Purchasers to exercise their Warrants. Without limiting the preceding sentences, unless required by the Company’s Transfer
Agent, no ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization)
of any Notice of Exercise form be required in order to exercise the Warrants. The Company shall honor exercises of the Warrants and shall
deliver Warrant Shares in accordance with the terms, conditions and time periods set forth in the Transaction Documents.
4.14
Reservations of Shares. As of the date hereof, the Company has reserved and the Company shall continue to reserve and keep available
at all times, free of preemptive rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to issue
shares of Common Stock pursuant to this Agreement and Warrant Shares pursuant to any exercise of the Warrants.
4.15
Lock-Up Agreements. The Company shall not amend, modify, waive or terminate any provision of any of the Lock-Up Agreements, except
to extend the term of the lock-up period, and shall enforce the provisions of each Lock-Up Agreement in accordance with its terms. If
any party to a Lock-Up Agreement breaches any provision of a Lock-Up Agreement, the Company shall promptly use its best efforts to seek
specific performance of the terms of such Lock-Up Agreement.
ARTICLE
V.
MISCELLANEOUS
5.1
Termination. This Agreement may be terminated by any Purchaser, as to such Purchaser’s obligations hereunder only and without
any effect whatsoever on the obligations between the Company and the other Purchasers, by written notice to the other parties, if the
Closing has not been consummated on or before the fifth (5th) Trading Day following the date hereof; provided, however,
that no such termination will affect the right of any party to sue for any breach by any other party (or parties).
5.2
Fees and Expenses. Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay the fees and
expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the
negotiation, preparation, execution, delivery and performance of this Agreement. The Company shall pay all Transfer Agent fees (including,
without limitation, any fees required for same-day processing of any instruction letter delivered by the Company and any exercise notice
delivered by a Purchaser), stamp taxes and other taxes and duties levied in connection with the delivery of any Securities to the Purchasers.
5.3
Entire Agreement. The Transaction Documents, together with the exhibits and schedules thereto, the Preliminary Prospectus and
the Prospectus, contain the entire understanding of the parties with respect to the subject matter hereof and thereof and supersede all
prior agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into
such documents, exhibits and schedules.
5.4
Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in
writing and shall be deemed given and effective on the earliest of: (a) the time of transmission, if such notice or communication is
delivered via facsimile at the facsimile number or email attachment at the email address as set forth on the signature pages attached
hereto at or prior to 5:30 p.m. (New York City time) on a Trading Day, (b) the next Trading Day after the time of transmission, if such
notice or communication is delivered via facsimile at the facsimile number or email attachment at the email address as set forth on the
signature pages attached hereto on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (c)
the second (2nd) Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service
or (d) upon actual receipt by the party to whom such notice is required to be given. The address for such notices and communications
shall be as set forth on the signature pages attached hereto. To the extent that any notice provided pursuant to any Transaction Document
constitutes, or contains, material, non-public information regarding the Company or any Subsidiaries, the Company shall simultaneously
file such notice with the Commission pursuant to a Current Report on Form 8-K.
5.5
Amendments; Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument
signed, in the case of an amendment, by the Company and the Purchasers who purchased at least 50.1% in interest of the sum of (i) the
Shares and (ii) the Pre-Funded Warrant Shares initially issuable upon exercise of the Pre-Funded Warrants based on the initial Subscription
Amounts hereunder (or, prior to the Closing, the Company and each Purchaser), or, in the case of a waiver, by the party against whom
enforcement of any such waived provision is sought; provided, that if any amendment, modification or waiver disproportionately and adversely
impacts a Purchaser (or multiple Purchasers), the consent of such disproportionately impacted Purchaser (or 50.1% in interest of such
Purchasers) shall also be required. No waiver of any default with respect to any provision, condition or requirement of this Agreement
shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition
or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise
of any such right. Any proposed amendment or waiver that disproportionately, materially and adversely affects the rights and obligations
of any Purchaser relative to the comparable rights and obligations of the other Purchasers shall require the prior written consent of
such adversely affected Purchaser. Any amendment effected in accordance with this Section 5.5 shall be binding upon each Purchaser and
holder of Securities and the Company.
5.6
Headings. The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to
limit or affect any of the provisions hereof.
5.7
Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and
permitted assigns. The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent
of each Purchaser (other than by merger). Any Purchaser may assign any or all of its rights under this Agreement to any Person to whom
such Purchaser assigns or transfers any Securities, provided that such transferee agrees in writing to be bound, with respect to the
transferred Securities, by the provisions of the Transaction Documents that apply to the “Purchasers.”
5.8
No Third-Party Beneficiaries. The Placement Agent shall be the third-party beneficiary of the representations and warranties of
the Company in Section 3.1 and the representations and warranties of the Purchasers in Section 3.2. This Agreement is intended for the
benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provision
hereof be enforced by, any other Person, except as otherwise set forth in Section 4.8 and this Section 5.8 and the Placement Agency Agreement,
as applicable.
5.9
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents
shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the
principles of conflicts of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and
defense of the transactions contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto
or its respective affiliates, directors, officers, stockholders, partners, members, employees or agents) shall be commenced exclusively
in the state and federal courts sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction
of the state and federal courts sitting in the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or
in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of
any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is improper or is an inconvenient
venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any
such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery)
to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process
in any other manner permitted by law. If either party shall commence an action, suit or proceeding to enforce any provisions of the Transaction
Documents, then, in addition to the obligations of the Company under Section 4.8, the prevailing party in such action, suit or proceeding
shall be reimbursed by the other party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.
5.10
Survival. The representations and warranties contained herein shall survive the Closing and the delivery of the Securities for
the applicable statute of limitations.
5.11
Execution. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one
and the same agreement and shall become effective when counterparts have been signed by each party and delivered to each other party,
it being understood that the parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission
or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party
executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature
page was an original thereof.
5.12
Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall
remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially
reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would
have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
5.13
Rescission and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions
of) any of the other Transaction Documents, whenever any Purchaser exercises a right, election, demand or option under a Transaction
Document and the Company does not timely perform its related obligations within the periods therein provided, then such Purchaser may
rescind or withdraw, in its sole discretion from time to time upon written notice to the Company, any relevant notice, demand or election
in whole or in part without prejudice to its future actions and rights; provided, however, that, in the case of a rescission of an exercise
of a Warrant, the applicable Purchaser shall be required to return any shares of Common Stock subject to any such rescinded exercise
notice concurrently with the return to such Purchaser of the aggregate exercise price paid to the Company for such shares and the restoration
of such Purchaser’s right to acquire such shares pursuant to such Purchaser’s Warrant (including, issuance of a replacement
warrant certificate evidencing such restored right).
5.14
Replacement of Securities. If any certificate or instrument evidencing any Securities is mutilated, lost, stolen or destroyed,
the Company shall issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation),
or in lieu of and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to
the Company of such loss, theft or destruction. The applicant for a new certificate or instrument under such circumstances shall also
pay any reasonable third-party costs (including customary indemnity) associated with the issuance of such replacement Securities.
5.15
Remedies. In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages,
each of the Purchasers and the Company will be entitled to specific performance under the Transaction Documents. The parties agree that
monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations contained in the Transaction
Documents and hereby agree to waive and not to assert in any action for specific performance of any such obligation the defense that
a remedy at law would be adequate.
5.16
Payment Set Aside. To the extent that the Company makes a payment or payments to any Purchaser pursuant to any Transaction Document
or a Purchaser enforces or exercises its rights thereunder, and such payment or payments or the proceeds of such enforcement or exercise
or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from, disgorged by
or are required to be refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other Person under any law (including,
without limitation, any bankruptcy law, state or federal law, common law or equitable cause of action), then to the extent of any such
restoration the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such enforcement or setoff had not occurred.
5.17
Independent Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser under any Transaction Document
are several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance
or non-performance of the obligations of any other Purchaser under any Transaction Document. Nothing contained herein or in any other
Transaction Document, and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to constitute the Purchasers as
a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way
acting in concert or as a group with respect to such obligations or the transactions contemplated by the Transaction Documents. Each
Purchaser shall be entitled to independently protect and enforce its rights including, without limitation, the rights arising out of
this Agreement or out of the other Transaction Documents, and it shall not be necessary for any other Purchaser to be joined as an additional
party in any proceeding for such purpose. Each Purchaser has been represented by its own separate legal counsel in its review and negotiation
of the Transaction Documents. For reasons of administrative convenience only, each Purchaser and its respective counsel have chosen to
communicate with the Company through Placement Agent Counsel. Placement Agent Counsel does not represent any of the Purchasers and only
represents the Placement Agent. The Company has elected to provide all Purchasers with the same terms and Transaction Documents for the
convenience of the Company and not because it was required or requested to do so by any of the Purchasers. It is expressly understood
and agreed that each provision contained in this Agreement and in each other Transaction Document is between the Company and a Purchaser,
solely, and not between the Company and the Purchasers collectively and not between and among the Purchasers.
5.18
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required
or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business
Day.
5.19
Liquidated Damages. The Company’s obligations to pay any partial liquidated damages or other amounts owing under the Transaction
Documents is a continuing obligation of the Company and shall not terminate until all unpaid partial liquidated damages and other amounts
have been paid notwithstanding the fact that the instrument or security pursuant to which such partial liquidated damages or other amounts
are due and payable shall have been canceled.
5.20
Construction. The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity to revise
the Transaction Documents and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against
the drafting party shall not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition, each
and every reference to share prices and shares of Common Stock in any Transaction Document shall be subject to adjustment for reverse
and forward stock splits, stock dividends, stock combinations and other similar transactions relating to shares of Common Stock that
occur after the date of this Agreement.
5.21
WAIVER OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES
EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY
AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.
(Signature
Pages Follow)
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
| STARDUST
POWER INC. |
|
Address
for Notice: |
| |
|
|
|
|
| |
|
|
15
E. Putnam Ave, Suite 378
Greenwich,
CT 06830 |
| By: |
|
|
|
|
| Name: |
Roshan
Pujari |
|
Email:
|
[__] |
| Title: |
Chief
Executive Officer |
|
Fax:
|
[ ] |
| |
|
|
|
|
| With
a copy to (which shall not constitute notice): |
|
|
|
| |
|
|
|
|
Thompson
Hine LLP
300
Madison Avenue, 27th Floor
New
York, New York 10017-6232 |
|
|
|
| |
|
|
|
|
| |
|
|
Email:
|
[ ] |
| Attention: |
[ ] |
|
Fax: |
[ ] |
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOR PURCHASER FOLLOWS]
[PURCHASER
SIGNATURE PAGES TO SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories
as of the date first indicated above.
Name
of Purchaser: ____________________________________________________________________
Signature
of Authorized Signatory of Purchaser: _____________________________________________
Name
of Authorized Signatory: ___________________________________________________________
Title
of Authorized Signatory: ____________________________________________________________
Email
Address of Authorized Signatory: ____________________________________________________
Facsimile
Number of Authorized Signatory: _________________________________________________
Address
for Notice to Purchaser:
Address
for Delivery of Warrant Shares to the Purchaser (if not same address for notice):
DWAC
for Common Stock:
Subscription
Amount: $___________________
Shares
of Common Stock: ___________________
Shares
of Common Stock underlying the Pre-Funded Warrants: ________
Beneficial
Ownership Blocker ☐ 4.99% or ☐ 9.99%
Warrant
Shares underlying the Common Warrants: ________
Beneficial
Ownership Blocker ☐ 4.99% or ☐ 9.99%
EIN
Number: ___________________
☐
Notwithstanding anything contained in this Agreement to the contrary, by checking this box (i) the obligations of the above-signed to
purchase the securities set forth in this Agreement to be purchased from the Company by the above-signed, and the obligations of the
Company to sell such securities to the above-signed, shall be unconditional and all conditions to Closing shall be disregarded, (ii)
the Closing shall occur on the first (1st) Trading Day following the date of this Agreement if this Agreement is entered into
before 4:00 p.m. Eastern time, or no later than the second (2nd) Trading Day following the date hereof, if this Agreement
is entered at or after 4:00 p.m. Eastern time, and (iii) any condition to Closing contemplated by this Agreement (but prior to being
disregarded by clause (i) above) that required delivery by the Company or the above-signed of any agreement, instrument, certificate
or the like or purchase price (as applicable) shall no longer be a condition and shall instead be an unconditional obligation of the
Company or the above-signed (as applicable) to deliver such agreement, instrument, certificate or the like or purchase price (as applicable)
to such other party on the Closing Date.
[SIGNATURE
PAGES CONTINUE]
Schedule
3.1(h)
Capitalization
Since
September 30, 2024, the Company has issued [●] shares of its common stock pursuant to its Common Stock Purchase Agreement with
B. Riley Principal Capital II, LLC, dated October 7, 2024.
Exhibit
A
Form
of Common Warrant
(See
Attached)
Exhibit
B
Form
of Pre-Funded Warrant
(See
Attached)
Exhibit
C
Form
of Lock-Up Agreement
(See
Attached)
Exhibit
10.2
A.G.P./Alliance
Global Partners
590
Madison Avenue, 28th Floor
New
York, NY 10022
January
23, 2025
Stardust
Power Inc.
Attention:
Roshan Pujari, Chief Executive Officer
15
E. Putnam Ave, Suite 378
Greenwich,
CT 06830
| Re: |
Placement
Agency Agreement |
Dear
Mr. Pujari:
Subject
to the terms and conditions of this letter agreement (the “Agreement”) between A.G.P./Alliance Global Partners, as
the sole placement agent (“A.G.P.”) (A.G.P. is also referred to herein as the “Placement Agent”),
and Stardust Power Inc., a Delaware corporation (the “Company”), the parties hereby agree that the Placement Agent
shall serve as the placement agent for the Company, on a “reasonable best efforts” basis, in connection with the proposed
placement (the “Placement”) of registered securities of the Company, consisting of: (i) shares of common stock, par
value $0.0001 per share (“Common Stock”), (ii) pre-funded warrants to purchase Common Stock (the “Pre-Funded
Warrants”), and (iii) warrants to purchase Common Stock (the “Common Warrants” and collectively with the
Pre-Funded Warrants, the “Warrants”). The Common Stock and Warrants actually placed by the Placement Agent are referred
to herein as the “Placement Agent Securities.” The Placement Agent Securities and shares of Common Stock issuable
upon the exercise of the Warrants shall be offered and sold under the Company’s registration statement on Form S-1 (File No. 333-284298),
which was declared effective by the Securities and Exchange Commission (the “Commission”) on January 23, 2025. The
documents executed and delivered by the Company and the Purchasers (as defined below) in connection with the Placement, including, without
limitation, a securities purchase agreement (the “Purchase Agreement”), shall be collectively referred to herein as
the “Transaction Documents.” The terms of the Placement shall be mutually agreed upon by the Company and the purchasers
listed in the Purchase Agreement (each, a “Purchaser” and collectively, the “Purchasers”), and
nothing herein constitutes that the Placement Agent would have the power or authority to bind the Company or any Purchaser, or an obligation
for the Company to issue any Placement Agent Securities or complete the Placement. The Company expressly acknowledges and agrees that
the Placement Agent’s obligations hereunder are on a reasonable best efforts basis only and that the execution of this Agreement
does not constitute a commitment by the Placement Agent to purchase the Placement Agent Securities and does not ensure the successful
placement of the Placement Agent Securities or any portion thereof or the success of the Placement Agent with respect to securing any
other financing on behalf of the Company. The Placement Agent may retain other brokers or dealers to act as sub-agents or selected-dealers
on its behalf in connection with the Placement. Certain affiliates of the Placement Agent may participate in the Placement by purchasing
some of the Placement Agent Securities. The sale of Placement Agent Securities to any Purchaser will be evidenced by the Purchase Agreement
between the Company and such Purchaser, in a form reasonably acceptable to the Company and the Purchaser. Capitalized terms that are
not otherwise defined herein have the meanings given to such terms in the Purchase Agreement. Prior to the signing of any Purchase Agreement,
officers of the Company will be available to answer inquiries from prospective Purchasers.
SECTION
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY; COVENANTS OF THE COMPANY.
| |
A. |
Representations
of the Company. With respect to the Placement Agent Securities, each of the representations and warranties (together with any
related disclosure schedules thereto) and covenants made by the Company to the Purchasers in the Purchase Agreement in connection
with the Placement, is hereby incorporated herein by reference into this Agreement (as though fully restated herein) and is, as of
the date of this Agreement and as of the Closing Date, hereby made to, and in favor of, the Placement Agent. In addition to the foregoing,
the Company represents and warrants that there are no affiliations with any Financial Industry Regulatory Authority (“FINRA”)
member firm participating in the Placement among the Company’s officers, directors or, to the knowledge of the Company, any
five percent (5.0%) or greater stockholder of the Company. |
| |
|
|
| |
B. |
Covenants
of the Company. The Company covenants and agrees to continue to retain (i) a firm of Public Company Accounting Oversight Board
independent registered public accountants for a period of at least two (2) years after the Closing Date and (ii) a reputable transfer
agent for a period of two (2) years after the Closing Date, provided the Company is then subject to the reporting requirement of
the Exchange Act (as defined below). Furthermore, except as set forth in the Purchase Agreement, for forty-five (45) days after the
Closing Date, the Company shall not, without the prior written consent of the Placement Agent, (i) issue, enter into any agreement
to issue or announce the issuance or proposed issuance of any shares of Common Stock (except as permitted in the Purchase Agreement)or
(ii) file any registration statement or amendment or supplement thereto, other than the Preliminary Prospectus, the Prospectus or
a registration statement on Form S-8 in connection with any employee benefit plan; provided, however, such restrictions shall not
apply with respect to (a) an Exempt Issuance, as defined in the Purchase Agreement, or (b) as otherwise permitted in the Purchase
Agreement. In addition, for one hundred and eighty (180) days after the Closing Date, other than as set forth in the Purchase Agreement,
the Company shall not effect or enter into an agreement to effect any issuance of Placement Agent Securities or shares of Common
Stock involving a Variable Rate Transaction except such restriction shall not apply with respect to an Exempt Issuance. Notwithstanding
anything contained in this Section 2(B), after the forty-fifth (45th) day following the Closing, the Company may effectuate
sales pursuant to its Common Stock Purchase Agreement with B. Riley Principal Capital II, LLC, dated October 7, 2024 (the “B.
Riley Purchase Agreement”), provided such sales are at a price per share equal to or greater than $2.50. |
SECTION
2. REPRESENTATIONS OF THE PLACEMENT AGENT. The Placement Agent represents and warrants that it (i) is a member in good standing
of the FINRA, (ii) is registered as a broker/dealer under the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
(iii) is licensed as a broker/dealer under the laws of the United States of America, applicable to the offers and sales of the Placement
Agent Securities by the Placement Agent, (iv) is and will be a corporate body validly existing under the laws of its place of incorporation,
and (v) has full power and authority to enter into and perform its obligations under this Agreement. The Placement Agent will immediately
notify the Company in writing of any change in its status with respect to subsections (i) through (v) above. The Placement Agent covenants
that it will use its reasonable best efforts to conduct the Placement hereunder in compliance with the provisions of this Agreement and
the requirements of applicable law.
SECTION
3. COMPENSATION. In consideration of the services to be provided for hereunder, the Company shall pay to the Placement Agent and/or
its respective designees a cash fee of 6.0% of the aggregate purchase price paid by any and all Purchasers at the Closing (the “Cash
Fee”); provided, however, that the Cash Fee shall be 3.0% of the aggregate purchase price paid by each non-institutional investor
(the “Reduced Cash Fee”) who was introduced to the Placement Agent by the Company and is listed on Schedule A
to this Agreement (each, a “Company Purchaser”).
SECTION
4. EXPENSES. The Company agrees to pay all costs, fees and expenses incurred by the Company in connection with the performance of
its obligations hereunder and in connection with the transactions contemplated hereby, including, without limitation: (i) all expenses
incident to the issuance, delivery and qualification of the Placement Agent Securities (including all printing and engraving costs);
(ii) all fees and expenses of the transfer agent; (iii) all necessary issue, transfer and other stamp taxes in connection with the issuance
and sale of the Placement Agent Securities; (iv) all fees and expenses of the Company’s counsel, independent public or certified
public accountants and other advisors; (v) all costs and expenses incurred in connection with the preparation, printing, filing, shipping
and distribution of the Registration Statement (including financial statements, exhibits, schedules, consents and certificates of experts),
the Preliminary Prospectus and the Prospectus, and all amendments and supplements thereto, and this Agreement; (vi) all filing fees,
reasonable attorneys’ fees and expenses incurred by the Company in connection with qualifying or registering (or obtaining exemptions
from the qualification or registration of) all or any part of the Placement Agent Securities for offer and sale under the state securities
or blue sky laws or the securities laws of any other country; (vii) the fees and expenses associated with including the Placement Agent
Securities on the Trading Market; and (viii) up to $50,000 for accountable expenses related to legal fees of counsel to the Placement
Agent.
SECTION
5. TAIL FINANCING. The Placement Agent shall be entitled to compensation with respect to any public or private offering or other
financing or capital-raising transaction of any kind (each, a “Tail Financing”), to the extent such financing is both
(i) provided to the Company by investors contacted by the Placement Agent or that contacted the Placement Agent during the Term and (ii)
such Tail Financing is consummated at any time within the 6-month period following the Termination Date, provided, however
that the Company shall pay a reduced cash fee of 4.00% of the aggregate purchase price paid by the investors subject to the Cash
Fee, and no cash fee for the non-institutional investors subject to the Reduced Cash Fee in Section 3 hereof. Notwithstanding anything
to the contrary herein, the compensation due hereunder shall expressly not include any stock or equity of the Company issued to its officers,
directors, employees or consultants. The Placement Agent will provide a list of investors whom the Placement Agent has introduced to
the Company and brought over the wall during the Term.
SECTION
6. INDEMNIFICATION.
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A. |
To
the extent permitted by law, with respect to the Placement Agent Securities, the Company shall indemnify and hold harmless the Placement
Agent and its affiliates, agents, stockholders, directors, officers, employees, members and controlling persons (within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act) (each such entity or person, an “Indemnified Person”)
from and against all claims, actions, suits, proceedings (including those of stockholders), damages, costs and liabilities (collectively,
“Claims”), and shall reimburse each Indemnified Person for all reasonable fees and expenses (including the reasonable
fees and expenses of counsel) (collectively, the “Expenses”) as they are incurred by an Indemnified Person in
investigating, preparing, pursuing or defending any Claim, whether or not an Indemnified Person is a party thereto, that is caused
by, arises out of, or is based upon (i) any untrue statements made or any statements omitted to be made in the Registration Statement,
the Preliminary Prospectus or the Prospectus, or by any omission or alleged omission to state therein a material fact necessary to
make the statements therein, in light of the circumstances under which they were made, not misleading (other than untrue statements
or alleged untrue statements in, or omissions or alleged omissions from, information relating to an Indemnified Person furnished
in writing by or on behalf of such Indemnified Person expressly for use in the Registration Statement, Preliminary Prospectus or
any Prospectus) or (ii) any other actions taken or omitted to be taken by the Company or any Indemnified Person in connection with
this Agreement; provided, however, the Company will not be responsible for any Claims or Expenses of any Indemnified Person that
are judicially determined to have resulted primarily from such Indemnified Person’s (x) willful misconduct, violation of law
or gross negligence in connection with any of the action, inaction or the services described herein, or (y) use of any offering materials
or information concerning the Company in connection with the offer or sale of the Placement Agent’s Securities in the Placement,
which were not authorized for such use by the Company and which use constitutes gross negligence, violation of law or willful misconduct. |
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B. |
Promptly
after receipt by the Placement Agent of notice of any claim or the commencement of any action or proceeding with respect to which
any Indemnified Person is entitled to indemnity hereunder, the Placement Agent will notify the Company in writing of such claim or
of the commencement of such action or proceeding, but failure to so notify the Company shall not relieve the Company from any obligation
it may have hereunder, except and only to the extent such failure results in actual material harm to the Company, or materially prejudices
its ability to defend such action, suit or proceeding on behalf of such Indemnified Person. If the Company so elects or is requested
by the Placement Agent, the Company will assume the defense of such action or proceeding and will employ counsel reasonably satisfactory
to the Placement Agent and will pay the reasonable fees and expenses of such counsel. Notwithstanding the preceding sentence, the
Placement Agent will be entitled to employ its own counsel separate from counsel for the Company and from any other party in such
action if counsel for the Placement Agent reasonably determines that it would be inappropriate under the applicable rules of professional
responsibility for the same counsel to represent both the Company and the Placement Agent. In such event, the reasonable fees and
disbursements of no more than one such separate counsel will be paid by the Company, in addition to reasonable fees of local counsel. |
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C. |
The
Company may not settle, compromise or consent to the entry of any judgment in any pending or threatened Claim, in which indemnification
may be sought hereunder (whether or not any Indemnified Person is an actual or potential party thereto), without the prior written
consent of the Placement Agent (which will not be unreasonably delayed or withheld) unless such settlement, compromise or consent
provides for an unconditional and irrevocable release of each Indemnified Person from any and all liability arising out of such Claim. |
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D. |
The
Company agrees to notify the Placement Agent promptly of the assertion against it or any other person of any Claim or the commencement
of any action or proceeding relating to a transaction contemplated by this Agreement. |
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E. |
If
for any reason the foregoing indemnity is unavailable to the Placement Agent or insufficient to hold the Placement Agent harmless,
then the Company shall contribute to the amount paid or payable by the Placement Agent as a result of such Claim or Expenses in such
proportion as is appropriate to reflect (a) the relative benefits to the Company on the one hand, and the Placement Agent on the
other hand, in connection with the Placement, (b) the relative fault of the parties, and (c) other equitable considerations; provided,
however, that in no event shall the amount to be contributed by the Placement Agent exceed the fees actually received by the Placement
Agent under this Agreement. Notwithstanding the immediately preceding sentence, to the extent the exception to indemnification contemplated
by Paragraph A of this Section applies with respect to the Placement Agent, the Company shall contribute to the amount paid or payable
by the Placement Agent as a result of such Claim or Expenses in such proportion as is appropriate to reflect the relative fault of
the Company, on the one hand, and the Placement Agent, on the other hand, in connection with the matters contemplated by the Agreement;
provided, however, that in no event shall the amount to be contributed by Placement Agent exceed the fees actually received by Placement
Agent under the Agreement. The Company agrees that for the purposes of this paragraph the relative benefits to the Company and the
Placement Agent of the contemplated transaction (whether or not such transaction is consummated) shall be deemed to be in the same
proportion that the aggregate cash consideration payable (or contemplated to be payable) in such transaction bears to the fees paid
or payable to the Placement Agent under the Agreement. |
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F. |
These
indemnification provisions shall remain in full force and effect whether or not the transaction contemplated by this Agreement is
completed, survive the termination of this Agreement, and be in addition to any liability that the Company might otherwise have to
any Indemnified Person. |
SECTION
7. ENGAGEMENT TERM. The Placement Agent’s engagement hereunder will be until the earlier of the Closing Date and March 18,
2025 (the “Term”). The date of termination of this Agreement is referred to herein as the “Termination Date.”
In the event, however, in the course of the Placement Agent’s performance of due diligence it deems, it necessary to terminate
the engagement, the Placement Agent may do so prior to the Termination Date. The Company may elect to terminate the engagement hereunder
for any reason prior to the Termination Date but will remain responsible for fees pursuant to Section 3 hereof with respect to the Placement
Agent Securities if sold in the Placement. Notwithstanding anything to the contrary contained herein, the provisions concerning the Company’s
obligation to pay any fees actually earned pursuant to Section 3 hereof and the provisions concerning confidentiality, indemnification
and contribution contained herein, as well as provisions in Sections 10 – 16 hereof will survive any expiration or termination
of this Agreement. If this Agreement is terminated prior to the completion of the Placement, all fees and expenses due to the Placement
Agent as set forth in Section 3 and Section 4 shall be paid by the Company to the Placement Agent on or before the Termination Date (in
the event such fees are earned or owed as of the Termination Date). The Placement Agent agrees not to use any confidential information
concerning the Company provided to the Placement Agent by the Company for any purposes other than those contemplated under this Agreement.
SECTION
8. PLACEMENT AGENT INFORMATION. The Company agrees that any information or advice rendered by the Placement Agent in connection with
this engagement is for the confidential use of the Company only in its evaluation of the Placement and, except as otherwise required
by law, the Company will not disclose or otherwise refer to the advice or information in any manner without the Placement Agent’s
prior written consent.
SECTION
9. NO FIDUCIARY RELATIONSHIP. This Agreement does not create, and shall not be construed as creating rights enforceable by any person
or entity not a party hereto, except those entitled hereto by virtue of the indemnification provisions hereof. The Company acknowledges
and agrees that the Placement Agent is not and shall not be construed as a fiduciary of the Company and shall have no duties or liabilities
to the equity holders or the creditors of the Company or any other person by virtue of this Agreement or the retention of the Placement
Agent hereunder, all of which are hereby expressly waived.
SECTION
10. CLOSING. The obligations of the Placement Agent, and the closing of the sale of the Placement Agent Securities hereunder are
subject to the accuracy, when made and on the Closing Date, of the representations and warranties on the part of the Company contained
herein and in the Purchase Agreement, to the performance by the Company of its obligations hereunder, and to each of the following additional
terms and conditions, except as otherwise disclosed to and acknowledged and waived by the Placement Agent:
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A. |
All
corporate proceedings and other legal matters incident to the authorization, form, execution, delivery and validity of each of this
Agreement, the Placement Agent Securities, and all other legal matters relating to this Agreement and the transactions contemplated
hereby with respect to the Placement Agent Securities shall be reasonably satisfactory in all material respects to the Placement
Agent. |
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B. |
The
Placement Agent shall have received from Company Counsel, such counsel’s written opinion and negative assurance letter with
respect to the Placement Agent Securities, addressed to the Placement Agent and dated as of the Closing Date, in form and substance
reasonably satisfactory to the Placement Agent. |
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C. |
The
Placement Agent shall have received an executed FINRA questionnaire from each of the Company and the Company’s executive officers
and directors as well as executed Lock-Up Agreements from the Company’s executive officers and directors. |
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D. |
Shares
of Common Stock sold in the Placement, including shares of Common Stock issuable upon the exercise of the Warrants, must be registered
under the Exchange Act. The Company shall have taken no action designed to, or likely to have the effect of, terminating the registration
of the Common Stock under the Exchange Act or delisting or suspending from trading the Common Stock from the Trading Market or other
applicable U.S. national exchange, nor has the Company received any information suggesting that the Commission or the Trading Market
or other U.S. applicable national exchange is contemplating terminating such registration or listing, except as disclosed in the
Registration Statement, the Preliminary Prospectus and the Prospectus. |
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E. |
No
action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental
agency or body which would, as of the Closing Date, prevent the issuance or sale of the Placement Agent Securities or materially
and adversely affect or potentially and adversely affect the business or operations of the Company; and no injunction, restraining
order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued as of the Closing
Date which would prevent the issuance or sale of the Placement Agent Securities or materially and adversely affect the business or
operations of the Company. |
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F. |
The
Company shall have entered into a Purchase Agreement with each of the Purchasers of the Placement Agent Securities and such agreements
shall be in full force and effect and shall contain representations, warranties and covenants of the Company as agreed upon between
the Company and the Purchasers. |
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G. |
FINRA
shall have raised no objection to the fairness and reasonableness of the terms and arrangements of this Agreement. In addition, the
Company shall, if requested by the Placement Agent, make or authorize Placement Agent’s counsel to make on the Company’s
behalf, any filing with the FINRA Corporate Financing Department pursuant to FINRA Rule 5110 with respect to the Placement and pay
all filing fees required in connection therewith. |
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H. |
On
the date hereof, the Placement Agent shall have received, a letter from the Auditors of the Company, addressed to the Placement Agent,
dated as of the date hereof, and a bring-down “comfort letter” addressed to the Placement Agent on the Closing Date,
each in form and substance satisfactory to the Placement Agent. The letters shall not disclose any change in the condition (financial
or other), earnings, operations or business of the Company, which, in the Placement Agent’s sole judgment, is material and
adverse and that makes it, in the Placement Agent’s sole judgment, impracticable or inadvisable to proceed with the Placement
of the Securities. On the Closing Date, the Placement Agents shall have received from the Auditors of the Company a “bring-down”
comfort letter dated as of the Closing Date, in form and substance satisfactory to the Placement Agents, to the effect that they
reaffirm the statements made in the letter furnished pursuant to this Section 8(H)(1), except that the specified date referred to
therein for the carrying out of procedures shall be no more than three business days prior to such Closing Date. |
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I. |
The
Placement Agent shall have received customary certificates of the Company’s executive officers, as to the accuracy of the representations
and warranties contained in the Purchase Agreement, and a certificate of the Company’s secretary certifying (i) that the Company’s
charter documents are true and complete, have not been modified and are in full force and effect; (ii) that the resolutions of the
Company’s Board of Directors relating to the Placement are in full force and effect and have not been modified; and (iii) as
to the incumbency of the officers of the Company. |
If
any of the conditions specified in this Section 9 shall not have been fulfilled when and as required by this Agreement, all obligations
of the Placement Agent hereunder may be cancelled by the Placement Agent at, or at any time prior to, the Closing Date. Notice of such
cancellation shall be given to the Company in writing or orally. Any such oral notice shall be confirmed promptly thereafter in writing.
SECTION
11. GOVERNING LAW. This Agreement will be governed by, and construed in accordance with, the laws of the State of New York applicable
to agreements made and to be performed entirely in such State, without regard to principles of conflicts of law. This Agreement may not
be assigned by either party without the prior written consent of the other party. This Agreement shall be binding upon and inure to the
benefit of the parties hereto, and their respective successors and permitted assigns. Any right to trial by jury with respect to any
dispute arising under this Agreement or any transaction or conduct in connection herewith is waived. Any dispute arising under this Agreement
may be brought into the courts of the State of New York or into the Federal Court located in New York, New York and, by execution and
delivery of this Agreement, the Company hereby accepts for itself and in respect of its property, generally and unconditionally, the
jurisdiction of aforesaid courts. Each party hereto hereby irrevocably waives personal service of process and consents to process being
served in any such suit, action or proceeding by delivering a copy thereof via overnight delivery (with evidence of delivery) to such
party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any
manner permitted by law. If either party shall commence an action or proceeding to enforce any provisions of this Agreement, then the
prevailing party in such action or proceeding shall be reimbursed by the other party for its attorney’s fees and other costs and
expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
SECTION
12. ENTIRE AGREEMENT/MISCELLANEOUS. This Agreement embodies the entire agreement and understanding between the parties hereto, and
supersedes all prior agreements and understandings, relating to the subject matter hereof. If any provision of this Agreement is determined
to be invalid or unenforceable in any respect, such determination will not affect such provision in any other respect or any other provision
of this Agreement, which will remain in full force and effect. This Agreement may not be amended or otherwise modified or waived except
by an instrument in writing signed by both the Placement Agent and the Company. The representations, warranties, agreements and covenants
contained herein shall survive the Closing Date of the Placement and delivery of the Placement Agent Securities for the applicable statute
of limitations. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one
and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party,
it being understood that both parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission
or a .pdf format file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature
is executed) with the same force and effect as if such facsimile or .pdf signature page were an original thereof.
SECTION
13. NOTICES. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in
writing and shall be deemed given and effective on the earliest of (a) the date of transmission, if such notice or communication is sent
to the email address specified on the signature pages attached hereto prior to 6:30 p.m. (New York City time) on a business day, (b)
the next business day after the date of transmission, if such notice or communication is sent to the email address on the signature pages
attached hereto on a day that is not a business day or later than 6:30 p.m. (New York City time) on any business day, (c) the third business
day following the date of mailing, if sent by an internationally recognized air courier service, or (d) upon actual receipt by the party
to whom such notice is required to be given. The address for such notices and communications shall be as set forth on the signature pages
hereto.
SECTION
14. PRESS ANNOUNCEMENTS. The Company agrees that the Placement Agent shall, on and after the Closing Date, have the right to reference
the Placement and the Placement Agent’s role in connection therewith in the Placement Agent’s marketing materials and on
its website and to place advertisements in financial and other newspapers and journals, in each case at its own expense.
SECTION
15. PAYMENTS. All payments made or deemed to be made by the Company to the Placement Agent, its affiliates, stockholders, directors,
officers, employees, members and controlling persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act) (each, a “Payee”), if any, will be made without withholding or deduction for or on account of any present or
future taxes, duties, assessments or governmental charges of whatever nature (other than taxes on net income or similar taxes) imposed
or levied by or on behalf of the United States or any political subdivision or any taxing authority thereof or therein unless the Company
is or becomes required by law to withhold or deduct such taxes, duties, assessments or other governmental charges. In such event, the
Company will pay such additional amounts as will result, after such withholding or deduction, in the receipt by the Payee of the amounts
that would otherwise have been receivable in respect thereof. For the avoidance of doubt, all sums payable, paid or deemed payable under
this Agreement shall be considered exclusive of value added tax, sales tax or other similar taxes which shall be borne by, paid, collected
and remitted by the Company in accordance with applicable law.
Please
confirm that the foregoing correctly sets forth our agreement by signing and returning to the Placement Agent the enclosed copy of this
Agreement.
[The
remainder of this page has been intentionally left blank.]
The
foregoing Agreement is hereby accepted and agreed to as of the date first written above.
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A.G.P./ALLIANCE
GLOBAL PARTNERS |
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By: |
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Name:
|
Thomas
J. Higgins |
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Title:
|
Managing
Director |
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Address for Notice: |
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590 Madison Avenue, 28th Floor |
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New York, NY 10022 |
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Attn: |
Thomas
J. Higgins |
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Email:
|
|
Accepted
and agreed to as of the date first written above:
| Stardust
Power Inc. |
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| By: |
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| Name:
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| Title:
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Address
for Notice:
15
E. Putnam Ave, Suite 378
Greenwich,
CT 06830
Attn:
Roshan Pujari, Chief Executive Officer
Email:
[Signature
Page to Placement Agency Agreement]
Schedule
A
Company
Purchasers
Exhibit
99.1
Stardust
Power Inc. Announces Pricing of $5.75 Million Public Offering
GREENWICH,
Conn., January 24, 2025 (GLOBE NEWSWIRE) — Stardust Power Inc. (NASDAQ: SDST) (“Stardust Power” or the “Company”),
an American developer of battery-grade lithium products, today announced the pricing of its “reasonable best efforts” public
offering for the purchase and sale of up to 4,792,000 shares of common stock (or common stock equivalents in lieu thereof) and warrants
to purchase up to 4,792,000 shares of common stock at a combined offering price of $1.20 per share and accompanying warrant (the “Offering”).
The Company expects to receive aggregate gross proceeds of approximately $5.75 million, before deducting placement agent fees and other
offering expenses, and assuming no exercise of the warrants. The warrants will have an exercise price of $1.30 per share, will be exercisable
immediately and will expire five years from the issuance date.
“We
are proud that we have priced this round of financing with investment from a large institutional investor, representing their support
for the Stardust Power story. This financing continues building on our progress towards the FID stage for our large central lithium refinery.
The capital provides stability for the company to continue to execute against our business plan,” noted Stardust Power Founder
and CEO, Roshan Pujari.
The
closing of the Offering is expected to occur on or about January 27, 2025, subject to the satisfaction of customary closing conditions.
The Company intends to use the net proceeds from this Offering for working capital and general corporate purposes, as well as to satisfy
amounts due under certain existing promissory notes of the Company.
A.G.P./Alliance
Global Partners is acting as the sole placement agent for the Offering.
The
securities described above are being offered pursuant to a registration statement on Form S-1 (File No. 333-284298) previously filed
with the Securities and Exchange Commission (“SEC”) on January 15, 2025, which was declared effective on January 23, 2025.
This Offering is being made only by means of a prospectus forming part of the effective registration statement. A preliminary prospectus
relating to the Offering has been filed with the SEC. An electronic copy of the final prospectus relating to the Offering may be obtained,
when available, on the SEC’s website located at http://www.sec.gov and may also be obtained from A.G.P./Alliance Global Partners,
590 Madison Avenue, 28th Floor, New York, NY 10022, or by telephone at (212) 624-2060, or by email at prospectus@allianceg.com.
This
press release shall not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of these securities
in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under
the securities laws of any such state or jurisdiction.
About
Stardust Power Inc.
Stardust
Power is a developer of battery-grade lithium products designed to bolster America’s energy leadership by building resilient supply
chains. Stardust Power is developing a strategically central lithium refinery in Muskogee, Oklahoma with the anticipated capacity of
producing up to 50,000 metric tons per annum of battery-grade lithium. The Company is committed to sustainability at each point in the
process. Stardust Power trades on the Nasdaq under the ticker symbol “SDST.”
For
more information, visit www.stardust-power.com
Stardust
Power Contacts
For
Investors:
Johanna
Gonzalez
investor.relations@stardust-power.com
For
Media:
Michael
Thompson
media@stardust-power.com
Forward
Looking Statements
Certain
statements in this press release constitute “forward-looking statements.” Such forward-looking statements are often identified
by words such as “believe,” “may,” “will,” “estimate,” “continue,” “anticipate,”
“intend,” “expect,” “should,” “would,” “plan,” “predict,” “forecasted,”
“projected,” “potential,” “seem,” “future,” “outlook,” and similar expressions
that predict or indicate future events or trends or otherwise indicate statements that are not of historical matters, but the absence
of these words does not mean that a statement is not forward-looking. Forward-looking statements include, among other things, statements
relating to the satisfaction of customary closing conditions related to the Offering, the timing of the anticipated closing of the Offering
and the intended use of proceeds from the Offering. These forward-looking statements and factors that may cause actual results to differ
materially from current expectations include, but are not limited to: the ability of Stardust Power to grow and manage growth profitably,
maintain key relationships and retain its management and key employees; risks related to the uncertainty of the projected financial information
with respect to Stardust Power; risks related to the price of Stardust Power’s securities, including volatility resulting from
changes in the competitive and highly regulated industries in which Stardust Power plans to operate, variations in performance across
competitors, changes in laws and regulations affecting Stardust Power’s business and changes in the combined capital structure;
and risks related to the ability to implement business plans, forecasts, and other expectations and identify and realize additional opportunities.
The foregoing list of factors is not exhaustive.
Stockholders
and prospective investors should carefully consider the foregoing factors and the other risks and uncertainties described in documents
filed by Stardust Power from time to time with the SEC.
Stockholders
and prospective investors are cautioned not to place undue reliance on these forward-looking statements, which only speak as of the date
made, are not a guarantee of future performance and are subject to a number of uncertainties, risks, assumptions and other factors, many
of which are outside the control of Stardust Power. Stardust Power expressly disclaims any obligations or undertaking to release publicly
any updates or revisions to any forward-looking statements contained herein to reflect any change in the expectations of Stardust Power
with respect thereto or any change in events, conditions or circumstances on which any statement is based.
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