Form 8-K
8-K — Forward Industries, Inc.
Accession: 0001683168-26-007389
Filed: 2026-09-24
Period: 2026-09-22
CIK: 0000038264
SIC: 6199 (FINANCE SERVICES)
Item: Entry into a Material Definitive Agreement
Item: Regulation FD Disclosure
Item: Other Events
Item: Financial Statements and Exhibits
Documents
8-K — forward_8k.htm (Primary)
EX-4.1 — DESCRIPTION OF SECURITIES (forward_ex0401.htm)
EX-5.1 — LEGAL OPINION (forward_ex0501.htm)
EX-10.1 — SECURITIES PURCHASE AGREEMENT (forward_ex1001.htm)
EX-10.2 — PLACEMENT AGENCY AGREEMENT (forward_ex1002.htm)
EX-99.1 — PRESS RELEASE (forward_ex9901.htm)
GRAPHIC (forwardlogo.jpg)
XML — IDEA: XBRL DOCUMENT (R1.htm)
8-K — CURRENT REPORT
8-K (Primary)
Filename: forward_8k.htm · Sequence: 1
Forward Industries, Inc. Form 8-K
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________
FORM 8-K
______________
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
Date of Report (Date of earliest event
reported): September 22, 2026
Forward Industries, Inc.
(Exact name of registrant as specified in its charter)
Texas
001-34780
13-1950672
(State or Other Jurisdiction
(Commission
(I.R.S. Employer
of Incorporation)
File Number)
Identification No.)
111 Congress Avenue, Suite 500
Austin,
Texas 78701
(Address of Principal Executive Office) (Zip Code)
(512)
256-9040
(Registrant’s telephone number, including
area code)
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b)
of the Act:
Title of each class
Trading Symbol(s)
Name of each exchange on which registered
Common Stock, par value $0.01 per share
FWDI
The NASDAQ Capital Market
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities
Exchange Act of 1934 (17 CFR §240.12b-2).
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 September 22, 2026, Forward Industries, Inc. (the
“Company”) entered into a securities purchase agreement (the “Purchase Agreement”) with an institutional investor
(the “Purchaser”) pursuant to which the Company agreed to issue and sell in a registered direct offering (the “Offering”)
under the Securities Act of 1933 (the “Securities Act”), an aggregate of 3,125,000 shares (the “Shares”) of the
Company’s common stock (“Common Stock”). Each Share was offered and sold at an offering price of $8.00 prior to deducting
placement agent fees and other offering expenses.
The Offering closed on September 24, 2026. The Company
received gross proceeds from the Offering of approximately $25,000,000, before deducting placement agent fees and other estimated offering
expenses payable by the Company. The Company intends to use the net proceeds from the Offering for the purchase of Solana, working capital
and general corporate purposes.
In connection with the Offering, 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 serve as the Company’s exclusive placement agent in connection with
the Offering. As compensation for the services provided by the Placement Agent in connection with the Offering, the Company agreed
to pay the Placement Agent a cash fee of 5% of the gross proceeds which will be received by the Company from the sale of the Shares at
the closing of the Offering. The Company also agreed to reimburse the Placement Agent for certain accountable expenses related to its
legal fees incurred in connection with its services as placement agent in an amount not to exceed $50,000 in the aggregate.
The Shares were offered by the Company pursuant to
the Company’s effective shelf registration statement on Form S-3ASR (File No. 333-290312) filed with the Securities and Exchange
Commission (the “SEC”) and the related prospectus supplement and accompanying prospectus supplement.
Pursuant to the Purchase Agreement, the Company agreed
that: (a) for a period of 15 days after the closing date of the Offering, the Company will not (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 (as defined in the Purchase
Agreement) or (ii) file any registration statement or any amendment or supplement thereto, in each case subject to certain limited exceptions;
and (b) from the date of the Purchase Agreement and until 15 days following the closing date of the Offering, the Company will be prohibited
from effecting or entering into an agreement to effect any issuance by the Company or any of its subsidiaries of Common Stock or Common
Stock Equivalents (or a combination of units thereof) involving a Variable Rate Transaction (as defined in the Purchase Agreement), subject
to certain Exempt Issuances (as defined in the Purchase Agreement).
The legal opinion of Nason, Yeager, Gerson, Harris
& Fumero, P.A. relating to the legality of the issuance and sale of the Shares in the Offering is filed as Exhibit 5.1 to this Current
Report on Form 8-K.
The foregoing descriptions of the Purchase Agreement
and Placement Agency Agreement do not purport to be complete and are qualified in their entirety by reference to the full text of the
Form of Securities Purchase Agreement and Placement Agency Agreement, which are attached as Exhibits 10.1 and 10.2, respectively, hereto
and incorporated by reference herein.
Item 7.01. Regulation FD Disclosure.
On September 24, 2026, the Company issued a press
release announcing the closing of the Offering. A copy of the press release is furnished as Exhibit 99.1 to this Current Report on Form
8-K and is incorporated herein by reference.
The information in this Item 7.01, including Exhibit
99.1 attached hereto, is being furnished and shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange
Act of 1934 (the “Exchange Act”), or otherwise subject to the liabilities of that section. The information in this Item 7.01
and Exhibit 99.1 shall not be incorporated by reference into any filing under the Securities Act, or the Exchange Act, except as shall
be expressly set forth by specific reference in such a filing.
2
Item 8.01. Other Events.
The Description of Securities Registered Pursuant
to Section 12 of the Exchange Act (the “Description of Securities”) attached as Exhibit 4.1 to this Current Report on Form
8-K is filed for the purpose of updating the Description of Securities contained in Exhibit 4.1 to our Form 10-K filed with the SEC on
December 27, 2019.
The Description of Securities modifies and supersedes
any prior Description of Securities of the Company in any registration statement or report filed with the SEC and will be available for
incorporation by reference into certain of the Company’s filings with the SEC pursuant to the Securities Act, the Exchange Act,
and the rules and forms promulgated thereunder.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
Exhibit No.
Description
4.1
Description of Securities Registered Pursuant to Section 12 of the Securities Exchange Act of 1934
5.1
Legal Opinion of Nason, Yeager, Gerson, Harris & Fumero, P.A.
10.1
Form of Securities Purchase Agreement
10.2
Placement Agency Agreement, dated as of September 22, 2026 by and between Forward Industries, Inc. and A.G.P./Alliance Global Partners
23.1
Consent of Nason, Yeager, Gerson, Harris & Fumero, P.A. (included in Exhibit 5.1)
99.1
Press Release, dated September 24, 2026 (furnished herewith)
104
Cover Page Interactive Data File (embedded within the Inline XBRL document)
3
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
FORWARD INDUSTRIES, INC.
Date: September 24, 2026
By:
/s/ Michael Pruitt
Name: Michael Pruitt
Title: Interim Chief Executive Officer
4
EX-4.1 — DESCRIPTION OF SECURITIES
EX-4.1
Filename: forward_ex0401.htm · Sequence: 2
Exhibit 4.1
DESCRIPTION OF SECURITIES
REGISTERED UNDER SECTION 12 OF THE SECURITIES EXCHANGE
ACT OF 1934
Capital Stock
Forward Industries, Inc. (the “Company”)
is authorized to issue (i) 300,000,000 shares of common stock, par value $0.01 per share (the “Common Stock”) and (ii)
4,000,000 shares of “blank check” preferred stock, par value $0.01 per share, with such rights, preferences and limitations
as may be set by a resolution of the Board of Directors of the Company.
The Common Stock is registered pursuant to Section
12(b) of the Securities Exchange Act of 1934.
The holders of Common Stock are entitled to one vote
per share on all matters submitted to a vote of shareholders, including the election of directors. There is no cumulative voting in the
election of directors. The directors of the Company are elected by a plurality of the votes cast by the shareholders. On all other matters
submitted to the shareholders, except as otherwise expressly provided by the Certificate of Formation or the Texas Business Organizations
Code (the “TBOC”), the vote of shareholders holding a majority of the voting power of the then-outstanding shares of stock
entitled to vote on the matter shall be sufficient to approve, authorize, adopt, or otherwise cause the Company to take any action. Any
action required or permitted to be taken at any meeting of shareholders may be taken without a meeting if holders of a majority of the
voting power of the then-outstanding shares of capital stock entitled to vote thereon consent in writing or by electronic transmission.
In the event of liquidation, dissolution or winding
up of the Company, whether voluntary or involuntary, and subject to the preferential or other rights of any holders of preferred stock
then outstanding, the holders of Common Stock are entitled to receive ratably, on a per share basis, all assets of the Company available
for distribution to its shareholders. Holders of Common Stock have no preemptive rights and have no right to convert their Common Stock
into any other securities and there are no redemption provisions applicable to our Common Stock.
The holders of Common Stock are entitled to any dividends
that may be declared by the Board of Directors out of funds legally available for payment of dividends subject to the prior rights of
holders of preferred stock and any contractual restrictions we have against the payment of dividends on Common Stock. We have not paid
cash dividends on our Common Stock since 1987 and do not plan to pay dividends on our Common Stock in the foreseeable future.
Preferred Stock
The Company’s Board of Directors is authorized,
subject to limitations prescribed by the laws of the State of Texas, to provide for the issuance of shares of Preferred Stock in one or
more series, and by filing a certificate of designation pursuant to Texas law, to establish the number of shares to be included in each
such series, and to fix the designation, powers (including voting powers), preferences and relative, participating, optional or other
special rights, if any, and the qualifications, limitations or restrictions thereof, of the shares of each such series. Accordingly, the
Board of Directors, without shareholder approval, may issue Preferred Stock with voting, conversion or other rights that could adversely
affect the voting power and other rights of holders of Common Stock.
Certain Anti-Takeover Provisions of Texas Law,
Our Charter and Bylaws
Chapter 21, Subchapter M of the TBOC (Sections 21.601
through 21.610) provides that a Texas corporation may not engage in certain business combinations, including mergers, consolidations and
asset sales, with a person, or an affiliate or associate of such person, who is an “Affiliated Shareholder” (generally defined
as the holder of 20% or more of the corporation’s voting shares) for a period of three years from the date such person became an
Affiliated Shareholder unless: (i) the business combination or purchase or acquisition of shares made by the Affiliated Shareholder was
approved by the board of directors of the corporation before the Affiliated Shareholder became an Affiliated Shareholder or (ii) the business
combination was approved by the affirmative vote of the holders of at least two-thirds majority of the outstanding voting shares of the
corporation not beneficially owned by the Affiliated Shareholder, at a meeting of shareholders called for that purpose (and not by written
consent), not less than six months after the Affiliated Shareholder became an Affiliated Shareholder.
1
The affiliated business combinations provisions of
the TBOC are not applicable to:
· the business combination of a corporation:
o where the corporation’s original articles of incorporation or bylaws contain a provision expressly
electing not to be governed by the affiliated business combinations provisions of the TBOC;
o that adopted an amendment to its articles of incorporation or bylaws before December 31, 1997, expressly
electing not to be governed by the affiliated business combinations provisions of the TBOC; or
o that adopted an amendment to its articles of incorporation or bylaws after December 31, 1997, by the affirmative
vote of the holders, other than Affiliated Shareholders, of at least two-thirds majority of the outstanding voting shares of the corporation,
expressly electing not to be governed by the affiliated business combinations provisions of the TBOC;
· a business combination of a corporation with an Affiliated Shareholder that became an Affiliated
Shareholder inadvertently, if the Affiliated Shareholder:
o as soon as practicable divests itself of enough shares to no longer be an Affiliated Shareholder; and
o would not at any time within the three-year period preceding the announcement of the business combination
have been an Affiliated Shareholder but for the inadvertent acquisition;
· a business combination with an Affiliated Shareholder that was the beneficial owner of 20% or more of
the outstanding voting shares of the corporation on December 31, 1996, and continuously until the announcement date of the business combination;
· a business combination with an Affiliated Shareholder who became an Affiliated Shareholder through a transfer
of shares of the corporation by will or intestate succession and continuously was such an Affiliated Shareholder until the announcement
date of the business combination; or
· a business combination of a corporation with a wholly owned subsidiary if the subsidiary is not an affiliate
or associate of the Affiliated Shareholder other than by reason of the Affiliated Shareholder’s beneficial ownership of the voting
shares of the corporation.
Blank Check Preferred Stock
As stated above, the Board of Directors has the authority,
without further action by the shareholders, to issue Preferred Stock with rights and preferences, including voting rights, designated
from time to time by the Board of Directors. The issuance of preferred stock, while providing flexibility in connection with possible
acquisitions and other corporate purposes could, under some circumstances, have the effect of delaying, deferring or preventing a change
in control of the Company.
2
Special Meeting of Shareholders
The Certificate of Formation provides that special
meetings of shareholders may be called only by the Chairperson of the Board, the Chief Executive Officer, the President, the Board of
Directors acting pursuant to a resolution adopted by a majority of the Board of Directors, or shareholders owning not less than a majority
of the voting power of the Company’s then-outstanding shares entitled to vote at such special meeting.
Advance Notice Requirements for Shareholder
Nominations and Business
The Bylaws provide that nominations of persons for
election to the Board and proposals of other business at an annual meeting may be made by a shareholder only if the shareholder complies
with the advance notice and other procedures set forth in Section 210. To be timely, notice generally must be delivered to the Company
no later than 90 days and no earlier than 120 days before the first anniversary of the preceding year’s annual meeting, subject
to alternative deadlines in specified circumstances. Shareholder nominations must also comply with the applicable requirements of Section
14 of the Exchange Act, including Rule 14a-19.
3
EX-5.1 — LEGAL OPINION
EX-5.1
Filename: forward_ex0501.htm · Sequence: 3
Exhibit 5.1
Nason, Yeager, Gerson, Harris & Fumero, P.A.
3001 PGA Blvd., Suite 305
Palm Beach Gardens, FL 33410
September 24, 2026
Forward Industries, Inc.
111 Congress Avenue
Suite 500
Austin, TX 78701
Ladies and Gentlemen:
You have advised us that Forward
Industries, Inc., a Texas corporation (the “Company”) has filed a prospectus supplement (the “Prospectus Supplement”)
dated September 24, 2026, with the Securities and Exchange Commission (the “Commission”) pursuant to Rule 424(b)(5)
under the Securities Act of 1933 (the “Act”) relating to a registration statement on Form S-3 (File No. 333-290312)
(the “Registration Statement”) which was filed with the Commission under the Act and declared effective on September
17, 2025. You have requested that we furnish you with this opinion letter which is being furnished in accordance with the requirements
of Item 601(b)(5) of Regulation S-K under the Act.
The Prospectus Supplement relates
to the registration of the offer and sale of 3,125,000 shares (the “Shares”) of the Company’s common stock, par
value $0.01 per share, to an institutional investor pursuant to that certain Securities Purchase Agreement dated as of September 22, 2026,
by and between the Company and the purchaser named therein (the “Purchase Agreement”). The Company also 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 serve as the Company’s exclusive placement agent in connection
with this Purchase Agreement.
We have examined such documents
and considered such legal matters as we have deemed necessary and relevant as the basis for the opinion set forth below including, without
limitation: (i) the Certificate of Formation and Bylaws of the Company; (ii) the Prospectus Supplement and the Registration Statement;
(iii) records of the Company’s transfer agent; (iv) the Purchase Agreement; (v) the Placement Agency Agreement; (vi) records of
meetings and consents of the Board of Directors of the Company provided to us by the Company; and (vii) such other documents as we have
deemed necessary or appropriate as a basis for the opinions set forth below. We have also assumed that all parties to such documents had
the power, corporate or other, to enter into and perform all obligations thereunder and that all such documents have been duly authorized
by all requisite action, corporate or other, and duly executed and delivered by all parties thereto. As to any facts material to the opinions
expressed herein that we did not independently establish or verify, we have relied upon oral and written statements and representations
of officers and other representatives of the Company and others.
Based upon and subject to the foregoing and the assumptions,
qualifications, exceptions, and limitations set forth herein, we are of the opinion that the Shares have been duly authorized and are
validly issued, fully paid and nonassessable.
We hereby consent to the filing
of this opinion letter as Exhibit 5.1 to the Registration Statement and to the reference to our firm under the caption “Legal Matters”
in the Prospectus Supplement and the base prospectus forming part of the Registration Statement. In giving such consent, we do not
thereby admit that we are experts within the meaning of the Act or the rules and regulations of the Commission or that this consent is
required by Section 7 of the Act. We assume no obligation to update or supplement any of the opinions set forth herein to reflect any
changes of law or fact that may occur following the date hereof.
Very truly yours,
/s/ Nason, Yeager, Gerson, Harris & Fumero, P.A.
Nason, Yeager, Gerson, Harris & Fumero, P.A.
EX-10.1 — SECURITIES PURCHASE AGREEMENT
EX-10.1
Filename: forward_ex1001.htm · Sequence: 4
Exhibit 10.1
SECURITIES
PURCHASE AGREEMENT
This Securities Purchase Agreement
(this “Agreement”) is dated as of September 22, 2026, between Forward Industries, Inc., a Texas 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),
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.
“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 commercial banks in The City of New York are authorized
or required by law to remain closed.
“Closing”
means the closing of the purchase and sale of the Purchased 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 and (ii) the Company’s
obligations to deliver the Purchased Securities, in each case, have been satisfied or waived, but in no event later than the first (1st)
Trading Day following the date hereof (or the second (2nd) Trading Day following the date hereof if this Agreement is signed
on a day that is not a Trading Day or after 4:00pm (New York City time) and before midnight (New York City time) on a Trading Day.
“Commission”
means the United States Securities and Exchange Commission.
“Common
Stock” means the common stock of the Company, par value $0.01 per share, and any other class of securities into which such securities
may hereafter be reclassified or changed.
1
“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.
“Company
Counsel” means Nason Yeager Gerson Harris & Fumero, P.A, with offices located at 3001 P.G.A. Boulevard, Suite 310, Palm
Beach Gardens, Florida 33410.
“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.
“Evaluation
Date” shall have the meaning ascribed to such term in Section 3.1(r).
“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, options, restricted stock awards, restricted stock units or other equity awards
to employees, officers, consultants or directors of the Company pursuant to any share or option plan duly adopted for such purpose, by
a majority of the non-employee members of the Board of Directors or the majority of the members of a committee of non-employee directors
established for such purpose for services rendered to the Company; provided, however, that any securities issued to consultants under
this clause (a) 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), (b) securities
issued 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,
and (c) securities issued pursuant to acquisitions or strategic transactions approved by a majority of the disinterested directors of
the Company, 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 equityholders 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.
“GAAP”
shall have the meaning ascribed to such term in Section 3.1(h).
“Indebtedness”
shall have the meaning ascribed to such term in Section 3.1(aa).
“Intellectual
Property Rights” shall have the meaning ascribed to such term in Section 3.1(p).
“Liens”
means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
2
“Material
Adverse Effect” shall have the meaning assigned to such term in Section 3.1(b).
“Material
Permits” shall have the meaning assigned to such term in Section 3.1(m).
“Per Share
Purchase Price” equals $8.00, subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations
and other similar transactions of the Common Stock that occur after the date of this Agreement and prior to the Closing Date.
“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.
“Placement
Agent” means A.G.P./Alliance Global Partners.
“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding,
such as a deposition), whether commenced or threatened.
“Prospectus”
means the final base prospectus filed for the Registration Statement, including all information, documents and exhibits filed with or
incorporated by reference into such prospectus.
“Prospectus
Supplement” means the supplement to the Prospectus complying with Rule 424(b) of the Securities Act, including all information,
documents and exhibits filed with or incorporated by reference into such prospectus supplement, that is filed with the Commission and
delivered by the Company to each Purchaser at the Closing in connection with the Purchased Securities.
“Purchased
Securities” means the Shares.
“Purchaser
Party” shall have the meaning ascribed to such term in Section 4.8.
“Registration
Statement” means the effective registration statement on Form S-3 filed with the Commission (File No. 333-290312) which registers
the sale of the Shares to the Purchasers, 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.
3
“SEC Reports”
shall have the meaning ascribed to such term in Section 3.1(h).
“Securities”
means the 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 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, and shall, where applicable, also include any direct or indirect
subsidiary of the Company formed or acquired after the date hereof.
“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 Common Stock is listed or quoted for trading on the date
in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock
Exchange (or any successors to any of the foregoing).
“Transaction
Documents” means this Agreement, all exhibits and schedules thereto and hereto and any other documents or agreements executed
in connection with the transactions contemplated hereunder.
“Transfer
Agent” means Equity Stock Transfer, LLC, the current transfer agent of the Company, with a mailing address of 237 W 37th St.
Suite 602, New York, NY 10018, and any successor transfer agent of the Company.
“Variable
Rate Transaction” shall have the meaning ascribed to such term in Section 4.11(b).
4
ARTICLE II.
PURCHASE AND SALE
2.1
Closing. On the Closing Date, upon the terms and subject to the conditions set forth herein, the Company agrees to sell,
and the Purchasers, severally and not jointly, agree to purchase, the number of Shares set forth under “Subscription Amount”
on the Purchaser’s signature page hereto at the Per Share Purchase Price up to an aggregate of $25,000,000 of Shares. 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” settlement with the Company or its designee. The Company shall deliver to each Purchaser its respective Shares 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 deliverable at the
Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Closing shall take place remotely by
electronic transfer of the Closing documentation. Unless otherwise directed by the Placement Agent, settlement of the Purchased Securities
shall occur via “Delivery Versus Payment” (“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, and including the time immediately prior to the Closing (the “Pre-Settlement Period”),
such Purchaser sells to any Person all, or any portion, of the Purchased Securities to be issued hereunder to such Purchaser at the Closing
(collectively, the “Pre-Settlement Securities”), such Purchaser shall, automatically hereunder (without any additional required
actions by such Purchaser or the Company), be deemed to be unconditionally bound to purchase and the Company shall be deemed unconditionally
bound to sell, such Pre-Settlement Securities at the Closing; provided, that the Company shall not be required to deliver any Pre-Settlement
Securities to such Purchaser prior to the Company’s receipt of the purchase price of such Pre-Settlement Securities hereunder; and
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 Securities during the Pre-Settlement Period.
The decision to sell any Purchased Securities will be made at the sole discretion of such Purchaser from time to time, including during
the Pre-Settlement Period.
2.2
Deliveries.
(a)
On or prior to the Closing Date (except as indicated below), the Company shall deliver or cause to be delivered to each Purchaser
the following:
(i)
this Agreement duly executed by the Company;
(ii)
a legal opinion of Company Counsel, substantially in form and substance reasonably satisfactory to the Placement Agent and each
Purchaser;
(iii)
subject to Section 2.1, the Company shall have provided each Purchaser with the Company’s wire instructions, on Company letterhead
and executed by the Chief Executive Officer or Chief Financial Officer;
(iv)
subject to 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 equal to
such Purchaser’s Subscription Amount divided by the Per Share Purchase Price, registered in the name of such Purchaser; and
(v)
the Prospectus and Prospectus Supplement (which may be delivered in accordance with Rule 172 under the Securities Act).
5
(b)
On or prior to the Closing Date, each Purchaser shall deliver or cause to be delivered to the Company, the following:
(i)
this Agreement duly executed by such Purchaser; and
(ii)
such Purchaser’s Subscription Amount, which shall be made available for DVP settlement with the Company or its designee.
2.3
Closing Conditions.
(a)The
obligations of the Company hereunder in connection with the Closing with respect to each Purchaser 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, in all respects)
when made and on the Closing Date of the representations and warranties of such Purchaser contained herein (unless such representation
or warranty is as of a specific date therein, in which case they shall be accurate in all material respects (or, to the extent representations
or warranties are qualified by materiality, in all respects) as of such date);
(ii)
all obligations, covenants and agreements of such Purchaser required to be performed at or prior to the Closing Date shall have
been performed in all material respects; and
(iii)
the delivery by such 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 such representation or warranty is as of a specific date therein in which case they shall be accurate in all material respects
(or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) 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 in all material respects;
(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;
(v)
from the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission or the Company’s
principal 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 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 Purchased Securities at the Closing;
6
(vi)
the Company shall have filed an additional listing application with the principal Trading Market with respect to the Shares; and
(vii)
after giving effect to the issuance of the Purchased Securities pursuant to this Agreement, on the Closing Date, no fewer than
76,288,215 shares of Common Stock of the Company will have been issued and outstanding, and all such issued and outstanding shares of
Common Stock shall have been issued prior to or contemporaneously with the issuance of the Purchased Securities to the Purchasers.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1
Representations and Warranties of the Company. Except as set forth in the SEC Reports (other than the risk factors and forward-looking
statement disclaimers, except for any factual historical statements contained therein), the Company hereby makes the following representations
and warranties to each Purchaser as of the date hereof and as of the Closing Date as follows (unless as of a specific date therein, in
which case they shall be accurate as of such date):
(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.
(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 (or such similar concept)
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 certificate or articles of incorporation, bylaws 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, prospects or condition (financial or otherwise) 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 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.
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(d)
No Conflicts. 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 certificate or
articles of incorporation, bylaws or other organizational or charter documents, (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 pursuant to, 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, individually or in the aggregate, 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, foreign 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 Supplement, (iii)
the notice and/or application(s) to each applicable Trading Market for the listing of the Shares for trading thereon in the time and manner
required thereby, and (iv) such filings as are required to be made under applicable state securities laws (collectively, the “Required
Approvals”).
(f)
Issuance of the Securities; Registration. The Securities 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 nonassessable, free and clear of all Liens
imposed by the Company. The Company has reserved and will keep available from its duly authorized but unissued shares of Common Stock,
and at all times will have sufficient authorized but unissued shares of Common Stock to accommodate, the maximum number of shares of Common
Stock issuable pursuant to this Agreement. The Company has prepared and filed the Registration Statement in conformity with the requirements
of the Securities Act, which became effective on September 17, 2025 (the “Effective Date”), 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 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 Supplement with the Commission pursuant to Rule 424(b). At the time the Registration Statement and any amendments thereto
became effective, 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 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. The Company was at the time of the filing of the Registration
Statement eligible to use Form S-3. The Company is eligible to use Form S-3 under the Securities Act and it meets the transaction requirements
as set forth in General Instruction I.B.1 of Form S-3.
8
(g)
Capitalization. As of September 22, 2026, the Company had 73,163,215 shares of Common Stock outstanding and no shares of
preferred stock outstanding. The Company has not issued any capital stock since its most recently filed periodic report under the Exchange
Act, other than pursuant to the exercise of employee stock options or the vesting or granting of restricted stock units, in each case
under the Company’s equity incentive plans, the issuance of shares of Common Stock or other equity securities to employees pursuant
to the Company’s equity incentive plans or employee stock purchase plans and pursuant to the conversion and/or exercise of Common
Stock Equivalents outstanding as of the date of the most recently filed periodic report under the Exchange Act. No Person has any right
of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by the
Transaction Documents. Except as a result of the purchase and sale of the Purchased Securities and for equity incentives issued pursuant
to the Company’s equity incentive plans 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 the 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 or 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). There are no outstanding securities or instruments of the Company or any Subsidiary with any provision that adjusts
the exercise, conversion, exchange or reset price of such security or instrument upon an issuance of securities by the Company or any
Subsidiary. There are no outstanding securities or instruments of the Company or any Subsidiary that contain any redemption or similar
provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become
bound to redeem a security of the Company or such Subsidiary. The Company does not have any stock appreciation rights or “phantom
stock” plans or agreements or any similar plan or agreement. All of the outstanding shares of capital stock of the Company are duly
authorized, validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, and
none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities.
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 capital
stock to which the Company is a party or, to the knowledge of the Company, between or among any of the Company’s stockholders.
(h)
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
12 months preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the
foregoing materials, including the exhibits thereto and documents incorporated by reference therein, together with the Prospectus and
the Prospectus Supplement, being collectively referred to herein as the “SEC Reports”) on a timely basis or has received
a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their
respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act,
as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading. The Company has never been an issuer subject to Rule 144(i) under the Securities Act. The consolidated
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 United States generally accepted accounting principles applied on a consistent basis during the periods
involved (“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.
9
(i)
Material Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements
included within 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) neither the Company nor any Subsidiary has 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 (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 materially 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 shares of its capital
stock and (v) the Company has not issued any equity securities to any officer, director or Affiliate, except pursuant to existing Company
equity incentive 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 , 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, prospects, properties, operations, assets or financial condition that would be required to be disclosed by the Company under
applicable securities laws at the time this representation is made or deemed made that has not been publicly disclosed at least one (1)
Trading Day prior to the date that this representation is made.
(j)
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 or the Securities 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 director or officer thereof, is or has been 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. In the last
three years 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.
(k)
Labor Relations. No labor dispute exists or, to the knowledge of the Company, is threatened or 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 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.
(l)
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 as could not have or reasonably be
expected to result in a Material Adverse Effect.
10
(m)
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 permits could 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.
(n)
Title to Assets. 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, foreign 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.
(o)
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. 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.
(p)
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 at least equal to the aggregate Subscription Amount. 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.
(q)
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 and (iii) other
employee benefits, including equity incentives granted under any equity incentive plan of the Company.
11
(r)
Sarbanes-Oxley; Internal Accounting Controls. The Company and the Subsidiaries are in compliance in all material respects
with any and all applicable requirements of the Sarbanes-Oxley Act of 2002, as amended 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 and liabilities is compared with the existing assets and liabilities 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 periodic report under the Exchange Act (such date, the “Evaluation Date”). The Company
presented in its most recently filed periodic report 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) of the Company and its
Subsidiaries that have materially affected, or is reasonably likely to materially affect, the internal control over financial reporting
of the Company and its Subsidiaries.
(s)
Certain Fees. Except for fees payable by the Company to the Placement Agent, 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. 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.
(t)
Investment Company. Neither the Company nor any Subsidiary is required to register, or is an Affiliate of a company required
to register, and immediately after receipt of payment for the Purchased Securities and application thereof, neither the Company nor any
Subsidiary will be required to register or be an Affiliate of a company required to register, as 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 required to register as an “investment company” under the Investment Company Act of 1940, as amended.
(u)
Registration Rights. Except as set forth in the SEC Reports, 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.
(v)
Listing and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) of the Exchange Act, and
the Company has taken no action designed to terminate, 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. The Company is in compliance with the applicable continued listing requirements of each Trading Market on which the
Common Stock is currently listed or quoted, and 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 Company is, and has no reason to believe that it will not in the foreseeable future
continue to be, in compliance with all such listing and maintenance requirements. 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.
12
(w)
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 similar charter documents)
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.
(x)
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. 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 SEC Reports, 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 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 the light of the
circumstances under which they were made and when made, not misleading. The Company acknowledges and agrees 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.
(y)
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 (i) the Securities Act or (ii) any applicable shareholder
approval provisions of any Trading Market on which any of the securities of the Company are listed or designated.
(z)
Solvency. 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 Purchased 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. The Company does not intend to incur debts beyond its ability to pay such debts
as they mature (taking into account the timing and amounts of cash to be payable on or in respect of its debt). The Company has no knowledge
of any facts or circumstances which lead it to believe that it will file for reorganization or liquidation under the bankruptcy or reorganization
laws of any jurisdiction within one (1) year from the Closing Date. Except as disclosed in the SEC Reports, as of the date hereof, neither
the Company nor any Subsidiary has any outstanding secured or unsecured Indebtedness. For the purposes of this Agreement, “Indebtedness”
means (x) any liabilities for borrowed money or amounts owed in excess of $50,000 (other than trade accounts payable incurred in the ordinary
course of business), (y) all guaranties, endorsements and other contingent obligations in respect of indebtedness of others in excess
of $50,000, 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 any lease required to be capitalized in accordance
with GAAP. Neither the Company nor any Subsidiary is in default with respect to any Indebtedness.
13
(aa)
Tax Status. 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 United States 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 that are material in amount, shown or determined to be due on such returns,
reports and declarations and (iii) has set aside on its books provision reasonably adequate for the payment of 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.
(bb)
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.
(cc)
Accountants. The Company’s independent registered public accounting firm is CBIZ, Inc. 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 ending December
31, 2026.
(dd)
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.
(ee)
Acknowledgment Regarding Purchaser’s Trading Activity. Anything in this Agreement or elsewhere herein to the contrary
notwithstanding (except for Sections 3.2(f) and 4.14 hereof), 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 transaction or future private placement transactions, 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 stockholders' 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.
14
(ff)
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 Securities, (ii) sold, bid for, purchased, or, paid any compensation for soliciting purchases
of, any of the Securities, 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 Placement Agent in connection with
the placement of the Securities.
(gg)
Cybersecurity. (i)(x) To the Company’s knowledge, 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, and has no knowledge of any event or condition that would reasonably be expected to result in, 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
industry standards and practices.
(hh)
Compliance with Data Privacy Laws. (i) The Company and the Subsidiaries are, and at all times during the last three
(3) years were, in compliance with all applicable state, federal and foreign data privacy and security laws and regulations, including,
without limitation, the European Union General Data Protection Regulation (“GDPR”) (EU 2016/679) (collectively, “Privacy
Laws”), except as would not, individually or in the aggregate, have a Material Adverse Effect; (ii) the Company and the
Subsidiaries have in place, comply with, and take appropriate steps reasonably designed to ensure compliance in all material respects
with their policies and procedures relating to data privacy and security and the collection, storage, use, disclosure, handling and analysis
of Personal Data (as defined below) (the “Policies”); (iii) the Company provides accurate notice of its applicable
Policies to its customers, employees, third party vendors and representatives as required by the Privacy Laws; and (iv) applicable
Policies provide accurate and sufficient notice of the Company’s then-current privacy practices relating to its subject matter,
and do not contain any material omissions of the Company’s then-current privacy practices, as required by Privacy Laws. “Personal
Data” means (i) a natural person’s name, street address, telephone number, email address, photograph, social security
number, bank information, or customer or account number; (ii) any information which would qualify as “personally identifying
information” under the Federal Trade Commission Act, as amended; (iii) “personal data” as defined by GDPR; and (iv) any
other piece of information that allows the identification of such natural person, or his or her family, or permits the collection or analysis
of any identifiable data related to an identified person’s health or sexual orientation. Except as would not, individually or in
the aggregate, have a material adverse effect, (i) none of such disclosures made or contained in any of the Policies have been inaccurate,
misleading, or deceptive in violation of any Privacy Laws and (ii) the execution, delivery and performance of the Transaction Documents
will not result in a breach of any Privacy Laws or Policies. Neither the Company nor the Subsidiaries (i) to the knowledge
of the Company, has received written notice of any actual or potential liability of the Company or the Subsidiaries under, or actual or
potential violation by the Company or the Subsidiaries of, any of the Privacy Laws; (ii) is currently conducting or paying for, in
whole or in part, any investigation, remediation or other corrective action pursuant to any regulatory request or demand pursuant to any
Privacy Law; or (iii) is a party to any order, decree, or agreement by or with any court or arbitrator or governmental or regulatory
authority that imposed any obligation or liability under any Privacy Law.
(ii)
Equity Incentive Plans. Each stock option granted by the Company under the Company’s equity incentive plans was granted
(i) in accordance with the terms of the Company’s equity incentive plans 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 equity incentive plans 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.
15
(jj)
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”).
(kk)
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.
(ll)
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 (25%) percent 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.
(mm)
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 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.
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 in violation of the Securities
Act or any applicable state securities law (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). Such Purchaser is
acquiring the Securities hereunder in the ordinary course of its business.
16
(c)
Purchaser Status. At the time such Purchaser was offered the Securities, it was, and as of the date hereof it is, an “accredited
investor” as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7), (a)(8), (a)(9), (a)(12), or (a)(13) under the Securities Act, or
a “qualified institutional buyer” as defined in Rule 144A of under the Securities Act.
(d)
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.
(e)
Access to Information. Such Purchaser acknowledges that it has had the opportunity to review the Transaction Documents (including
all exhibits and schedules thereto) 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.
(f)
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 pricing terms of the transactions contemplated hereunder and ending immediately prior to the execution hereof. Notwithstanding
the foregoing, (A) 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, 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 and (B) in the case of
a Purchaser that has implemented internal information barriers pursuant to information controls policy to “wall-off” certain
trading personnel, the representations set forth above shall only apply to such walled-off trading personnel. 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 in order to effect Short Sales or similar transactions in the future.
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, with respect to locating or borrowing shares in order to effect Short Sales or similar transactions in the future.
17
ARTICLE IV.
OTHER AGREEMENTS OF THE PARTIES
4.1
Securities. The Shares shall be issued free of all legends. If at any time following the date hereof the Registration Statement
(or any subsequent registration statement registering the sale or resale of the Shares) is not effective or is not otherwise available
for the sale or resale of the Shares, the Company shall immediately notify the holders of the Shares 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 or resale of the 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 in compliance with applicable federal and state securities laws). The Company shall
use commercially reasonable efforts to keep a registration statement (including the Registration Statement) registering the issuance or
resale of the Shares effective.
4.2
Furnishing of Information. Until the time that no Purchaser owns Securities, 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 shareholder approval prior to the closing of such other
transaction unless shareholder 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 any of their respective officers, directors, employees, Affiliates 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, employees, Affiliates or agents, 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 effect. The Company understands and confirms
that each Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the Company. 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) and reasonably cooperate with such Purchaser regarding such disclosure.
18
4.5
Shareholder 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 and any additional material, non-public information that is contained in the Transaction Documents or contained
in or incorporated by reference into the Prospectus, all of 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 constitutes, or the Company reasonably believes constitutes, material non-public information, unless prior thereto such Purchaser
shall have consented in writing to the receipt of such information and agreed in writing with the Company to keep such information confidential.
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, employees, Affiliates or agents, including, without limitation, the Placement Agent, or a duty to
the Company, any of its Subsidiaries or any of their respective officers, directors, employees, Affiliates or agents, including, without
limitation, the Placement Agent, 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 with the delivery of such
notice 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 as set forth in the Prospectus
Supplement and shall not use such proceeds in violation of FCPA or OFAC regulations.
19
4.8
Indemnification of Purchasers. Subject to the provisions of this Section 4.8, the Company will indemnify, to the fullest
extent permitted by applicable law, and hold each Purchaser and its directors, officers, shareholders, members, partners, investment managers,
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, shareholders, members, partners, investment managers, employees or 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) 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,
(b) any action instituted against the Purchaser Parties in any capacity (including a Purchaser Party’s status as an investor), or
any of them or their respective Affiliates, by the Company or by any stockholder of the Company who is not an Affiliate of such Purchaser
Party, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is solely based upon a material
breach of such Purchaser Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings
such Purchaser Party may have with any such stockholder or any violations by such Purchaser Party of state or federal securities laws
or any conduct by such Purchaser Party which is finally judicially determined to constitute fraud, gross negligence or willful misconduct),
and (c) in connection with any registration statement of the Company providing for the resale by the Purchasers of the Shares, (i) any
untrue or alleged untrue statement of a material fact contained in such registration statement, any prospectus or any form of prospectus
or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission
of a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus or supplement
thereto, in the light of the circumstances under which they were made) not misleading, except to the extent, but only to the extent, that
such untrue statements or omissions are based solely upon information regarding such Purchaser Party furnished in writing to the Company
by such Purchaser Party expressly for use therein, or (ii) any violation or alleged violation by the Company of the Securities Act, the
Exchange Act or any applicable state or non-U.S. securities law, or any rule or regulation thereunder in connection therewith. 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 reasonably acceptable to the Purchaser Party 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 (y) for any settlement by a Purchaser
Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (z) to the extent,
but only to the extent, that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any such Purchaser
Party’s representations, warranties or covenants under the Transaction Documents, as determined by a final, non-appealable judgment
of a court of competent jurisdiction. The Company shall not, without the prior written consent of the Purchaser Party, effect any settlement
of any pending or threatened action or proceeding in respect of which any Purchaser Party is or could have been a party and indemnity
could have been sought hereunder by such Purchaser Party, unless such settlement includes an unconditional release of such Purchaser Party
from all liability on claims that are the subject matter of such proceeding and does not include any statements as to or any findings
of fault, culpability or failure to act by or on behalf of any Purchaser Party. 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. 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.
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4.9
Reservation of Common Stock. 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 pursuant to this Agreement.
4.10
Listing of Common Stock. The Company hereby agrees to use commercially reasonable best efforts to maintain the listing or
quotation of the Common Stock on the Trading Market on which it is currently listed, and concurrently with the Closing, the Company shall
submit a listing of additional shares notification form to the Trading Market with respect to the Purchased Securities. 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 will take such other action as is necessary to cause all of the 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 its
Common Stock on a Trading Market and will comply in all respects with the Company’s reporting, filing and other obligations under
the bylaws or rules of the Trading Market. The Company agrees 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.
4.11
Subsequent Equity Sales.
(a)
From the date hereof until 15 days after the Closing Date, neither the Company nor any Subsidiary shall (i) issue, enter into any
agreement to issue or announce the issuance or proposed issuance of any Common Stock or Common Stock Equivalents or (ii) file any registration
statement or any amendment or supplement thereto other than a registration statement on Form S-8 in connection with the Company’s
existing equity incentive plans, in each case other than as contemplated by this Agreement.
(b)
From the date hereof until 15 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 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 shares of 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 the 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. Any Purchaser shall be entitled to obtain injunctive relief against the Company to preclude any such
issuance, which remedy shall be in addition to any right to collect damages.
(c)
Notwithstanding the foregoing, this Section 4.11 shall not apply in respect of an Exempt Issuance, except that no Variable Rate
Transaction shall be an Exempt Issuance.
4.12
[Reserved].
4.13
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 Securities or otherwise.
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4.14
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 (other than as disclosed to its legal
and other representatives). 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, any of its Subsidiaries, or any of their respective officers, directors, employees, Affiliates, or agents, including,
without limitation, the Placement Agent, after the issuance of the initial press release as described in Section 4.4. Notwithstanding
the foregoing, (A) 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 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 and (B) in the case of
a Purchaser that has implemented internal information barriers pursuant to information controls policy to “wall-off” certain
trading personnel, this Section 4.14 shall apply only with respect to activities of such walled-off trading personnel.
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 Prospectus and the Prospectus
Supplement, 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.
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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 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 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 Purchasers which purchased at least 50.1% in interest of the Shares
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 multiple 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, warranties,
and covenants of the Company in this Agreement and the representations, warranties, and covenants of the Purchasers in this Agreement.
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.
23
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, shareholders, 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 Action or Proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such 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 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 any party shall commence an Action 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 or Proceeding shall be reimbursed by the non-prevailing 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.
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 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 “.pdf” signature page were 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.
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.
24
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 the legal counsel of the Placement Agent. The legal counsel of the Placement Agent 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
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.
5.19
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.
5.20
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 of the Common Stock that occur after the
date of this Agreement.
25
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)
26
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.
FORWARD INDUSTRIES, INC.
Address for Notice:
111 Congress Avenue, Suite 500
Austin, Texas 78701
Attn: Michael D. Pruitt, Interim Chief Executive Officer
By:__________________________________________
Name:
Title:
With a copy to (which shall not constitute notice):
[]
[ ]
E-Mail:
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOR PURCHASER FOLLOWS]
27
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: _________________________________
Address for Notice to Purchaser:
_________________________________
_________________________________
_________________________________
Address for Delivery of Securities to Purchaser (if not same as address
for notice):
_________________________________
_________________________________
Subscription Amount: $_________________
Shares: _________________
EIN Number: _________________
o
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 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.
28
EX-10.2 — PLACEMENT AGENCY AGREEMENT
EX-10.2
Filename: forward_ex1002.htm · Sequence: 5
Exhibit 10.2
September 22, 2026
Forward Industries, Inc.
111 Congress Avenue, Suite 500
Austin, Texas 78701
Dear Mr. Pruitt:
Subject to the terms and conditions of this letter
agreement (the “Agreement”) between A.G.P./Alliance Global Partners, (“AGP” or the “Placement
Agent”) as sole placement agent, and Forward Industries, Inc., a Texas corporation (the “Company”), that
the Placement Agent shall serve as the exclusive placement agent for the Company, on a “reasonable best efforts” basis, in
connection with the proposed placement (the “Placement”) of shares (the “Shares”) of common stock,
par value $0.01 per share (“Common Stock”) of the Company (the “Securities”). The Securities actually
placed by the Placement Agent are referred to herein as the “Placement Agent Securities.” The terms of the Placement
shall be mutually agreed upon by the Company and the purchasers (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 will issue any 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 Securities and does not ensure the successful placement of the 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 a securities purchase agreement (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 made by the Company to
the Purchasers in the Purchase Agreement with respect to (i) the Company’s authority to enter into and perform the Purchase Agreement
and this Agreement, (ii) the valid issuance of the Placement Agent Securities, and (iii) the absence of affiliations with any FINRA member
firm, in each case together with any related disclosure schedules, is hereby incorporated herein by reference (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. The
Company’s liability to the Placement Agent with respect to any such incorporated representations and warranties shall be subject
to the same limitations, exceptions, and knowledge qualifiers that apply to such representations and warranties as made to the Purchasers
under the Purchase Agreement. 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 securityholder of the Company, except as set
forth in the Purchase Agreement.
B. Covenants
of the Company. The Company covenants and agrees to continue to retain (i) a firm of independent PCAOB registered public accountants
for a period of at least two (2) years after the Closing Date and (ii) a reputable transfer agent with respect to the Common Stock for
a period of two (2) years after the Closing Date, provided the Company is then subject to the reporting requirements of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”). Furthermore, except for Exempt Issuances, from the date hereof
until fifteen (15) 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 Common Stock or Common
Stock Equivalents or (ii) file any registration statement or any amendment or supplement thereto, other than a registration statement
on Form S-8 in connection with the Company's existing equity incentive plans.
1
SECTION 2. REPRESENTATIONS
OF THE PLACEMENT AGENT. The Placement Agent represents and warrants that it is (i) a member in good standing of FINRA, (ii) registered
as a broker/dealer under the Exchange Act, (iii) 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 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 the Placement Agent and/or its respective designees
a cash fee of 5.0% of the aggregate gross proceeds raised from the sale of the Placement Agent Securities (the “Cash Fee”),
which shall be paid to AGP on the Closing Date. The Placement Agent reserves the right to reduce any item of compensation or adjust the
terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the Placement Agent’s
aggregate compensation is in excess of FINRA Rules or that the terms thereof require adjustment.
SECTION 4.
EXPENSES. The Company agrees to pay all reasonable 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 in connection with the transaction; (v) 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; (vi) the fees and expenses associated with including the Placement Agent Securities on the Trading Market; and (vii)
up to $50,000 for accountable expenses related to the legal fees of counsel to the Placement Agent. The Placement Agent reserves the right
to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by
FINRA to the effect that the Placement Agent’s aggregate compensation is in excess of FINRA Rules or that the terms thereof require
adjustment.
SECTION 5. INDEMNIFICATION.
A. To
the extent permitted by law, with respect to the Placement Agent Securities, the Company will indemnify the Placement Agent and 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) against all losses, claims, damages, expenses and liabilities, as the same are incurred (including
the reasonable fees and expenses of counsel), relating to or arising out of its activities hereunder or pursuant to this Agreement, except
to the extent that any losses, claims, damages, expenses or liabilities (or actions in respect thereof) are found in a final judgment
(not subject to appeal) by a court of law to have resulted primarily and directly from the Placement Agent’s willful misconduct,
violation of law or gross negligence in performing the services described herein.
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 the
Placement Agent 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 the forfeiture by the Company of substantial rights and defenses. 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 fees and expenses of such counsel. Notwithstanding the preceding sentence,
the Placement Agent will be entitled to employ counsel separate from counsel for the Company and from any other party in such action if
counsel for the Placement Agent reasonably determines, based on an actual conflict of interest (and not merely a potential conflict),
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 fees of local counsel. The Company will have the right to settle the claim or proceeding provided that the
Company will not settle any such claim, action or proceeding without the prior written consent of the Placement Agent, which will not
be unreasonably withheld. The Company shall not be liable for any settlement of any action effected without its written consent, which
will not be unreasonably withheld.
2
C. 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.
D. 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 losses, claims, damages or liabilities
in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Placement
Agent on the other, but also the relative fault of the Company on the one hand and the Placement Agent on the other that resulted in such
losses, claims, damages or liabilities, as well as any relevant equitable considerations. The amounts paid or payable by a party in respect
of losses, claims, damages and liabilities referred to above shall be deemed to include any legal or other fees and expenses incurred
in defending any litigation, proceeding or other action or claim. Notwithstanding the provisions hereof, the Placement Agent’s share
of the liability hereunder shall not be in excess of the amount of fees actually received, or to be received, by the Placement Agent under
this Agreement (excluding any amounts received as reimbursement of expenses incurred by the Placement Agent).
E. These
indemnification provisions shall remain in full force and effect whether or not the transaction contemplated by this Agreement is completed
and shall survive the termination of this Agreement, and shall be in addition to any liability that the Company might otherwise have to
any indemnified party under this Agreement or otherwise.
SECTION 6. ENGAGEMENT
TERM. The Placement Agent’s engagement hereunder will be until the earlier of the Closing Date and September 30, 2026. 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 and expenses pursuant to Section 3 and Section 4 hereof and fees 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, to pay expenses pursuant to Section 4 hereof, and the provisions
concerning confidentiality, indemnification and contribution contained herein 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 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 7. 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 their 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 8. 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 9. 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 in the Purchase Agreement, and to each of the following
additional terms and conditions:
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.
3
B. The
Placement Agent shall have received from outside U.S. counsel to the Company 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.
C. [Reserved.]
D. 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 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.
E. The
Placement Agent shall have received an executed FINRA questionnaire from each of the Company and the Company’s executive officers,
directors and 5% or greater securityholders.
F. The
Common Stock shall be registered under the Exchange Act and, as of the Closing Date, shall be listed and admitted and authorized for trading
on the Trading Market or other applicable U.S. national exchange and satisfactory evidence of such action shall have been provided to
the Placement Agent. 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.
G. 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 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.
H. 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.
I. 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.
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.
4
SECTION 10. 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. 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 11. 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. 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 12. 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 U.S. 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 13. 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 their marketing materials and on their websites and to place
advertisements in financial and other newspapers and journals, in each case at its own expense.
[The remainder of this page has been intentionally
left blank.]
5
Please confirm that the foregoing correctly sets forth
our agreement by signing and returning to the Placement Agent the enclosed copy of this Agreement.
Very truly yours,
A.G.P./ALLIANCE GLOBAL PARTNERS
By:
/s/ Thomas P. Higgins
Name: Thomas P. Higgins
Title: Managing Director
Address for notice:
590
Madison Avenue 28th Floor
New
York, New York 10022
Attn:
Thomas Higgins
Email:
thiggins@allianceg.com
Accepted and Agreed to as of
the date first written above:
FORWARD
INDUSTRIES, INC.
By:
/s/ Michael Pruitt
Name: Michael D. Pruitt
Title: Interim Chief Executive Officer
Address for notice:
Forward Industries, Inc.
111 Congress Avenue, Suite 500
Austin, Texas 78701
[Signature Page to Placement Agent Agreement]
6
EX-99.1 — PRESS RELEASE
EX-99.1
Filename: forward_ex9901.htm · Sequence: 6
Exhibit 99.1
Forward Industries
Completes $25 Million Registered Direct Offering with an Institutional Investor
Proceeds to Expand SOL Holdings and Accelerate
SOL Per Share Growth
AUSTIN, TX, Sept. 24, 2026 -- Forward Industries,
Inc. (NASDAQ: FWDI) (the “Company” or “Forward”), the leading Solana treasury company, today announced the closing
of its previously announced registered direct offering with an institutional investor. The Company sold 3,125,000 shares of its common
stock at a price of $8.00 per share. Forward received gross proceeds of approximately $25 million, before deducting placement agent fees
and other offering expenses, and intends to use the net proceeds primarily to acquire additional SOL.
“Forward is growing rapidly, and we are
strengthening our financial position as we scale. We secured substantial institutional capital in a single transaction on terms we believe
are favorable, without adding ongoing balance sheet obligations. This financing positions us to expand our SOL treasury and increase SOL
per share—the measure of growth that matters most to our shareholders. We now have additional capital to extend our competitive
lead and pursue opportunities from a position of strength. Our progress reflects disciplined capital allocation and a clear focus on translating
treasury growth into lasting shareholder value,” said Ryan Navi, Chief Investment Officer of Forward.
The shares were offered pursuant to the Company’s
shelf registration statement on Form S-3ASR (File No. 333-290312), which was declared effective by the U.S. Securities and Exchange Commission
(the “SEC”) on September 16, 2025. A prospectus supplement and accompanying prospectus relating to the offering have been
filed with the SEC and are available on the SEC’s website at www.sec.gov. Electronic copies of the prospectus supplement and the accompanying
prospectus 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.
A.G.P./Alliance Global Partners acted as sole
placement agent for the offering.
This press release shall not constitute an offer
to sell or the solicitation of an offer to buy these securities, nor shall there be any sale of these securities in any state or other
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 Forward Industries, Inc.
Forward Industries, Inc. (NASDAQ: FWDI) is a Solana
focused digital asset treasury company, with the strategy to buy, hold, stake, trade, invest in, and grow SOL and SOL related digital
assets, protocols and businesses. Forward’s mission is to expand and strengthen the Solana ecosystem by acquiring and staking SOL and
engaging with, providing tools to and investing in the Solana network, Solana developers and Solana related projects in order to increase
shareholder value. In connection with a private placement transaction in September 2025, Forward launched a digital asset treasury strategy
supported by industry leading investors and operating partners including Galaxy Digital and Jump Crypto. For more information on the Company’s
Solana treasury strategy, visit www.forwardindustries.com.
1
Forward Looking Statements
This press release includes forward-looking statements
within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as
amended. These forward-looking statements generally can be identified by the use of words such as “anticipate,” “expect,”
“plan,” “could,” “may,” “will,” “believe,” “estimate,” “forecast,”
“goal,” “project,” and other words of similar meaning. These forward-looking statements address various matters including
statements relating to the anticipated use of proceeds from the offering, the expected impact of the offering on SOL per share, the Company’s
plan for value creation and strategic advantages, and market size and growth opportunities. Each forward-looking statement contained in
this press release is subject to risks and uncertainties that could cause actual results to differ materially from those expressed or
implied by such statement. Applicable risks and uncertainties include, among others: failure to realize the anticipated benefits of the
digital asset treasury strategy; changes in business, market, financial, political, and regulatory conditions; risks relating to the Company’s
operations and business, including the highly volatile nature of the price of Solana and other cryptocurrencies and the incurrence of
indebtedness; the risk that the price of the Company’s common stock may be highly correlated to the price of the digital assets that it
holds; risks related to the performance and expected return of the companies and projects that the Company has invested in; risks related
to increased competition in the industries and markets in which the Company does and will operate (including the applicable digital assets
market); risks relating to significant legal, commercial, regulatory, and technical uncertainty regarding digital assets generally; risks
relating to the treatment of crypto assets for U.S. and foreign tax purposes; as well as those risks and uncertainties identified in the
Company’s filings with the SEC. The forward-looking statements in this press release speak only as of the date of this document, and the
Company undertakes no obligation to update or revise any of these statements. Investors should not place undue reliance on forward-looking
statements.
Contacts
Media Contact
comms@forwardindustries.com
Investor Relations Contact
Sean Mansouri, CFA / Aaron D’Souza
Elevate IR
(720) 330-2829
ir@forwardindustries.com
2
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Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
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Title of a 12(b) registered security.
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Reference 1: http://www.xbrl.org/2003/role/presentationRef
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Name of the Exchange on which a security is registered.
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Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
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-Section 12
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Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as soliciting material pursuant to Rule 14a-12 under the Exchange Act.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
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Trading symbol of an instrument as listed on an exchange.
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Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act.
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Reference 1: http://www.xbrl.org/2003/role/presentationRef
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