Form 8-K
8-K — Red Cat Holdings, Inc.
Accession: 0001104659-26-061333
Filed: 2026-05-14
Period: 2026-05-12
CIK: 0000748268
SIC: 7372 (SERVICES-PREPACKAGED SOFTWARE)
Item: Entry into a Material Definitive Agreement
Item: Other Events
Item: Financial Statements and Exhibits
Documents
8-K — tm2614279d7_8k.htm (Primary)
EX-1.1 — EXHIBIT 1.1 (tm2614279d7_ex1-1.htm)
EX-5.1 — EXHIBIT 5.1 (tm2614279d7_ex5-1.htm)
EX-99.1 — EXHIBIT 99.1 (tm2614279d7_ex99-1.htm)
EX-99.2 — EXHIBIT 99.2 (tm2614279d7_ex99-2.htm)
GRAPHIC (tm2614279d7_ex5-1img01.jpg)
XML — IDEA: XBRL DOCUMENT (R1.htm)
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant
to Section 13 or 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
May 12, 2026
Red Cat Holdings, Inc.
(Exact name of registrant as specified in its charter)
Nevada
001-40202
88-0490034
(State or other jurisdiction
of incorporation)
(Commission
File Number)
(I.R.S. Employer
Identification No.)
15 Ave. Munoz Rivera Ste 2200
San Juan, PR
(Address of principal executive offices)
00901
(Zip Code)
Registrant’s telephone number, including
area code: (800) 466-9152
Not Applicable
(Former name or former address, if changed since
last report)
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing 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 $0.001
RCAT
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 (§230.405 of this chapter) or Rule 12b-2 of the
Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ¨
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 1.01. Entry into a Material Definitive Agreement.
On May 12, 2026, Red
Cat Holdings, Inc. (the “Company”) entered into an underwriting agreement (the “Underwriting Agreement”)
with Evercore Group L.L.C. and BofA Securities, Inc., as representatives of the underwriters named therein (the “Underwriters”),
related to the offer and sale of shares of the Company’s common stock (the “Offering”). The Underwriting Agreement
provides for the offer and sale by the Company, and the purchase by the Underwriters, of 23,936,171 shares of the Company’s common
stock (the “Shares”) at a price to the public of $9.40 per share. Pursuant to the Underwriting Agreement, the Company
granted the Underwriters a 30-day option to purchase up to 3,590,425 additional shares of common stock. The Offering closed on May 14,
2026. The gross proceeds to the Company from the Offering were approximately $225.0 million, before deducting the Underwriters’
fees and other Offering expenses payable by the Company.
The Company intends to
use the net proceeds from the Offering for general corporate purposes and continued acceleration of strategic growth initiatives, including,
but not limited to, acquisitions or business expansion, research and development, capital expenditures and working capital.
The Underwriting
Agreement contains customary representations, warranties and agreements by the Company, customary conditions to closing,
indemnification obligations of the Company, including for liabilities arising under the Securities Act of 1933, other obligations of
the parties and termination provisions. The representations, warranties and covenants contained in the Underwriting Agreement were
made only for the purposes of such agreements and as of the specific dates, were solely for the benefit of the parties to such
agreements and may be subject to limitations agreed upon by the contracting parties.
The Shares are being
sold pursuant to the Company’s registration statement on Form S-3ASR (File No. 333-295792) that was automatically effective upon
filing on May 12, 2026 and a related base prospectus and prospectus supplements thereunder.
The foregoing description
of the Underwriting Agreement does not purport to be complete and is qualified in its entirety by the full text of the form of the Underwriting
Agreement, a copy of which is attached hereto as Exhibit 1.1, and is incorporated by reference herein. The legal opinion and consent of
Sheppard, Mullin, Richter & Hampton LLP relating to the validity of the Shares issued in the Offering is filed herewith as Exhibit
5.1.
This Current Report on
Form 8-K does not constitute an offer to sell any securities or a solicitation of an offer to buy any securities, nor shall there be any
sale of any securities in any state or jurisdiction in which such an offer, solicitation or sale would be unlawful prior to registration
or qualification under the securities laws of any such state or jurisdiction.
Item 8.01. Other Events.
On May 12, 2026, the Company issued press releases
announcing the launch and pricing of the Offering. Copies of the press releases are furnished as Exhibits 99.1 and 99.2 to this Form 8-K.
Item 9.01. Financial Statements and Exhibits.
d) Exhibits.
Exhibit No.
Description
1.1
Underwriting Agreement dated May 12, 2026, by and among Red Cat Holdings, Inc. Evercore Gorup
L.L.C. and BofA Securities, Inc.
5.1
Opinion of Sheppard, Mullin, Richter & Hampton LLP
23.1
Consent of Sheppard, Mullin, Richter & Hampton LLP (included in Exhibit 5.1)
99.1
Press release dated May 12, 2026
99.2
Press release dated May 12, 2026
104
Cover Page Interactive Data File (embedded within the Inline XBRL document)
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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.
RED CAT HOLDINGS, INC.
Dated: May 14, 2026
By:
/s/ Christian Morrison
Name:
Christian Morrison
Title:
Chief Finacial Officer
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EX-1.1 — EXHIBIT 1.1
EX-1.1
Filename: tm2614279d7_ex1-1.htm · Sequence: 2
Exhibit 1.1
Execution Version
RED CAT HOLDINGS, INC.
(a Nevada
corporation)
23,936,171 Shares of Common Stock
UNDERWRITING
AGREEMENT
Dated: May 12, 2026
RED CAT HOLDINGS, INC.
(a Nevada
corporation) 23,936,171 Shares of Common Stock
UNDERWRITING
AGREEMENT
May 12, 2026
Evercore Group L.L.C.
BofA
Securities, Inc.
as Representatives of the
several Underwriters
c/o
Evercore Group L.L.C.
55 East 52nd Street
New York, NY 10055
c/o
BofA Securities, Inc.
One Bryant Park
New York,
New York 10036
Ladies and Gentlemen:
Red
Cat Holdings, Inc., a Nevada corporation (the “Company”), confirms its agreement with Evercore Group L.L.C.
(“Evercore”) and BofA Securities, Inc. (“BofA”) and each of the other Underwriters named in Schedule A
hereto (collectively, the “Underwriters,” which term shall also include any underwriter substituted as hereinafter
provided in Section 10 hereof), for whom Evercore and BofA are acting as representatives (in such capacity, the
“Representatives”), with respect to (i) the sale by the Company, and the purchase by the Underwriters, acting
severally and not jointly, of the respective numbers of shares of Common Stock, par value $0.001 per share, of the Company
(“Common Stock”) set forth in Schedule A hereto, and (ii) the grant by the Company to the Underwriters, acting
severally and not jointly, of the option described in Section 2(b) hereof to purchase all or any part of 3,590,425
additional shares of Common Stock. The aforesaid 23,936,171 shares of Common Stock (the “Initial Securities”) to be
purchased by the Underwriters and all or any part of the 3,590,425 shares of Common Stock subject to the option described in
Section 2(b) hereof (the “Option Securities”) are herein called, collectively, the
“Securities.”
The
Company understands that the Underwriters propose to make a public offering of the Securities as soon as the Representatives deem advisable
after this Agreement has been executed and delivered.
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The
Company has filed with the Securities and Exchange Commission (the “Commission”) an automatic shelf registration
statement on Form S-3 (File No. 333-295792) covering the public offering and sale of certain securities, including the
Securities, under the Securities Act of 1933, as amended (the “1933 Act”) and the rules and regulations promulgated
thereunder (the “1933 Act Regulations”), which automatic shelf registration statement became effective under
Rule 462(e) under the 1933 Act Regulations (“Rule 462(e)”). Such registration statement, as of any time,
means such registration statement as amended by any post-effective amendments thereto as of such time, including the exhibits and
any schedules thereto at such time, the documents incorporated or deemed to be incorporated by reference therein at such time
pursuant to Item 12 of Form S-3 under the 1933 Act and the documents otherwise deemed to be a part thereof as of such
time pursuant to Rule 430B under the 1933 Act Regulations (“Rule 430B”), is referred to herein as the
“Registration Statement;” provided, however, that the “Registration Statement” without reference to a time
means such registration statement as amended by any post-effective amendments thereto as of the time of the first contract of sale
for the Securities, which time shall be considered the “new effective date” of such registration statement with respect
to the Securities within the meaning of paragraph (f)(2) of Rule 430B, including the exhibits and schedules thereto as of
such time, the documents incorporated or deemed incorporated by reference therein at such time pursuant to Item 12 of Form S-3
under the 1933 Act and the documents otherwise deemed to be a part thereof as of such time pursuant to the Rule 430B. Each
preliminary prospectus used in connection with the offering of the Securities, including the documents incorporated or deemed to be
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, is collectively referred to herein as a
“preliminary prospectus.” Promptly after execution and delivery of this Agreement, the Company will prepare and file a
final prospectus relating to the Securities in accordance with the provisions of Rule 424(b) under the 1933 Act
Regulations (“Rule 424(b)”). The final prospectus, in the form first furnished or made available to the
Underwriters for use in connection with the offering of the Securities, including the documents incorporated or deemed to be
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, are collectively referred to herein as
the “Prospectus.” For purposes of this Agreement, all references to the Registration Statement, any preliminary
prospectus, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system (or any successor system)
(“EDGAR”).
As used in this Agreement:
“Applicable
Time” means 7:15 P.M., New York City time, on May 12, 2026 or such other time as agreed by the Company and the Representatives.
“General
Disclosure Package” means any Issuer General Use Free Writing Prospectuses issued at or prior to the Applicable Time, the most
recent preliminary prospectus (including any documents incorporated therein by reference) that is distributed to investors prior to the
Applicable Time and the information included on Schedule B-1 hereto, all considered together.
“Issuer
Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 of the 1933 Act Regulations
(“Rule 433”), including without limitation any “free writing prospectus” (as defined in Rule 405 of
the 1933 Act Regulations (“Rule 405”)) relating to the Securities that is (i) required to be filed with the Commission
by the Company, (ii) a “road show for an offering that is a written communication” within the meaning of Rule 433(d)(8)(i),
whether or not required to be filed with the Commission, or (iii) exempt from filing with the Commission pursuant to Rule 433(d)(5)(i) because
it contains a description of the Securities or of the offering that does not reflect the final terms, in each case in the form filed
or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant
to Rule 433(g).
“Issuer
General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general distribution to prospective
investors (other than a “bona fide electronic road show,” as defined in Rule 433), as evidenced by its being
specified in Schedule B-2 hereto.
“Issuer
Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not an Issuer General Use Free Writing Prospectus.
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“Testing-the-Waters
Communication” means any oral or written communication with potential investors undertaken in reliance on Section 5(d) or
Rule 163B of the 1933 Act.
“Written
Testing-the-Waters Communication” means any Testing-the-Waters Communication that is a written communication within the meaning
of Rule 405 under the 1933 Act.
All
references in this Agreement to financial statements and schedules and other information which is “contained,” “included”
or “stated” in the Registration Statement, any preliminary prospectus or the Prospectus (or other references of like import)
shall include all such financial statements and schedules and other information which is incorporated by reference in or otherwise deemed
by 1933 Act Regulations to be a part of or included in the Registration Statement, any preliminary prospectus or the Prospectus, as the
case may be, prior to the execution and delivery of this Agreement; and all references in this Agreement to amendments or supplements
to the Registration Statement, any preliminary prospectus or the Prospectus shall include the filing of any document under the Securities
Exchange Act of 1934, as amended (the “1934 Act”), which is incorporated by reference in or otherwise deemed by 1933 Act
Regulations to be a part of or included in the Registration Statement, such preliminary prospectus or the Prospectus, as the case may
be, at or after the execution and delivery of this Agreement.
SECTION 1. Representations
and Warranties.
(a) Representations
and Warranties by the Company. The Company represents and warrants to each Underwriter as of the date hereof, the Applicable Time,
the Closing Time (as defined below) and any Date of Delivery (as defined below), and agrees with each Underwriter, as follows:
(i) Registration
Statement and Prospectuses. The Company meets the requirements for use of Form S-3 under the 1933 Act. The Registration Statement
is an “automatic shelf registration statement” (as defined in Rule 405) and the Securities have been and remain eligible
for registration by the Company on such automatic shelf registration statement. Each of the Registration Statement and any amendment
thereto has become effective under the 1933 Act. No stop order suspending the effectiveness of the Registration Statement or any post-effective
amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the
Prospectus has been issued and no proceedings for any of those purposes have been instituted or are pending or, to the Company’s
knowledge, contemplated. The Company has complied with each request (if any) from the Commission for additional information.
Each
of the Registration Statement and any post-effective amendment thereto, at the time of its effectiveness, each deemed effective date
with respect to the Underwriters pursuant to Rule 430B(f)(2) under the 1933 Act Regulations, the Applicable Time, the Closing
Time and any Date of Delivery complied and will comply in all material respects with the requirements of the 1933 Act and the 1933 Act
Regulations. Each preliminary prospectus, the Prospectus and any amendment or supplement thereto, at the time each was filed with the
Commission, and, in each case, at the Applicable Time, the Closing Time and any Date of Delivery complied and will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act Regulations. Each preliminary prospectus and the Prospectus delivered
to the Underwriters for use in connection with this offering was or will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
The
documents incorporated or deemed to be incorporated by reference in the Registration Statement, any preliminary prospectus and the
Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply
in all material respects with the requirements of the 1934 Act and the rules and regulations of the Commission under the 1934
Act (the “1934 Act Regulations”).
- 4 -
(ii) Accurate
Disclosure. Neither the Registration Statement nor any amendment thereto, at its effective time, on the date hereof, at the Closing
Time or at any Date of Delivery, contained, contains or will contain an untrue statement of a material fact or omitted, omits or will
omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. At the Applicable
Time, the Closing Time and any Date of Delivery, none of (A) the General Disclosure Package, (B) any individual Issuer Limited
Use Free Writing Prospectus and (C) any individual Written Testing-the-Waters Communication, when considered together with the General
Disclosure Package, included, includes or will include an untrue statement of a material fact or omitted, omits or will omit to state
a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not
misleading. Neither the Prospectus nor any amendment or supplement thereto, as of its issue date, at the time of any filing with the
Commission pursuant to Rule 424(b), at the Closing Time or at any Date of Delivery, included, includes or will include an untrue
statement of a material fact or omitted, omits or will omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading. The documents incorporated or deemed to be incorporated
by reference in the Registration Statement, the General Disclosure Package and the Prospectus, at the time the Registration Statement
became effective or when such documents incorporated by reference were filed with the Commission, as the case may be, when read together
with the other information in the Registration Statement, the General Disclosure Package or the Prospectus, as the case may be, did not
and will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading.
The
representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement (or any
amendment thereto), the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) made in reliance upon and
in conformity with written information furnished to the Company by any Underwriter through the Representatives expressly for use therein.
For purposes of this Agreement, the only information so furnished shall be the (i) concession figure appearing in the fourth paragraph
and (ii) the information appearing in the eleventh paragraph under the heading “Underwriting” in each case contained
in the Prospectus (collectively, the “Underwriter Information”).
(iii) Issuer
Free Writing Prospectuses. No Issuer Free Writing Prospectus conflicts or will conflict with the information contained in the Registration
Statement or the Prospectus, including any document incorporated by reference therein, and any preliminary or other prospectus deemed
to be a part thereof that has not been superseded or modified. Any offer that is a written communication relating to the Securities made
prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for
this paragraph only, of Rule 163(c) of the 1933 Act Regulations) has been filed with the Commission in accordance with the
exemption provided by Rule 163 under the 1933 Act Regulations (“Rule 163”) and otherwise complied with the requirements
of Rule 163, including without limitation the legending requirement, to qualify such offer for the exemption from Section 5(c) of
the 1933 Act provided by Rule 163.
(iv) Well-Known
Seasoned Issuer. (A) At the original effectiveness of the Registration Statement, (B) at the time of the most recent
amendment thereto for the purposes of complying with Section 10(a)(3) of the 1933 Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the 1934 Act or form of
prospectus), (C) at
the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the
1933 Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the 1933 Act, and (D) as
of the Applicable Time, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405).
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(v) Testing-the-Waters
Materials. The Company (A) has not engaged in any Testing-the-Waters Communication other than Testing-the-Waters Communications
with the consent of the Representatives with entities that are qualified institutional buyers within the meaning of Rule 144A under
the 1933 Act or institutions that are accredited investors within the meaning of Rule 501 under the 1933 Act and (B) has not
authorized anyone other than the Representatives to engage in Testing-the-Waters Communications. The Company reconfirms that the Representatives
have been authorized to act on its behalf in undertaking Testing-the-Waters Communications. The Company has not distributed any Written
Testing-the-Waters Communications other than those listed on Schedule B-3 hereto.
(vi) Company
Not Ineligible Issuer. At the time of filing the Registration Statement and any post-effective amendment thereto, at the earliest
time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of
the 1933 Act Regulations) of the Securities and at the date hereof, the Company was not and is not an “ineligible issuer,”
as defined in Rule 405, without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary
that the Company be considered an ineligible issuer.
(vii) Independent
Accountants. Each of KPMG LLP and dbbmckennon, the accountants who certified the financial statements and supporting schedules included
in the Registration Statement, the General Disclosure Package and the Prospectus, are, to the knowledge of the Company, independent public
accountants as required by the 1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations and the Public Company Accounting
Oversight Board.
(viii) Financial
Statements. The financial statements included or incorporated by reference in the Registration Statement, the General Disclosure
Package and the Prospectus, together with the related schedules and notes, present fairly in all material respects the financial position
of the Company and its consolidated subsidiaries at the dates indicated and the statement of operations, stockholders’ equity and
cash flows of the Company and its consolidated subsidiaries for the periods specified; said financial statements have been prepared in
conformity with U.S. generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods
involved. The supporting schedules, if any, present fairly in accordance with GAAP the information required to be stated therein. The
selected financial data and the summary financial information included in the Registration Statement, the General Disclosure Package
and the Prospectus present fairly the information shown therein and have been compiled on a basis consistent with that of the audited
financial statements included therein. Except as included therein, no historical or pro forma financial statements or supporting schedules
are required to be included or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus
under the 1933 Act or the 1933 Act Regulations. The interactive data in eXtensible Business Reporting Language included or incorporated
by reference in the Registration Statement, the General Disclosure Package and the Prospectus fairly presents the information called
for in all material respects and has been prepared in accordance with the Commission's rules and guidelines applicable thereto.
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(ix) No
Material Adverse Change in Business. Except as otherwise stated therein, since the respective dates as of which information is given
in the Registration Statement, the General Disclosure Package or the Prospectus, (A) there has been no material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”), (B) there
have been no transactions entered into by the Company or any of its subsidiaries, other than those in the ordinary course of business,
which are material with respect to the Company and its subsidiaries considered as one enterprise, and (C) there has been no dividend
or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(x) Good
Standing of the Company. The Company has been duly organized and is validly existing as a corporation in good standing under the
laws of the State of Nevada and has corporate power and authority to own, lease and operate its properties and to conduct its business
as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations
under this Agreement; and the Company is duly qualified as a foreign corporation to transact business and is in good standing in each
other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct
of business, except where the failure to so qualify or to be in good standing would not result in a Material Adverse Effect.
(xi) Good
Standing of the Company’s Subsidiaries. Each subsidiary of the Company (as such term is defined in Rule 405 of the 1933
Act Regulations (each, a “Subsidiary” and, collectively, the “Subsidiaries”)) has been duly organized and is
validly existing in good standing under the laws of the jurisdiction of its incorporation or organization, has corporate or similar power
and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General
Disclosure Package and the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the
failure to so qualify or to be in good standing would not result in a Material Adverse Effect. Except as otherwise disclosed in the Registration
Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding capital stock of each Subsidiary has
been duly authorized and validly issued, is fully paid and non-assessable and is owned by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. None of the outstanding shares of capital
stock of any Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Subsidiary. The only
subsidiaries of the Company are the subsidiaries listed on Exhibit 21 to the Registration Statement.
(xii) Capitalization.
The authorized, issued and outstanding shares of capital stock of the Company are as set forth in the Registration Statement, the General
Disclosure Package and the Prospectus in the column entitled “Actual” under the caption “Capitalization” (except
for subsequent issuances, if any, pursuant to this Agreement, pursuant to reservations, agreements or employee benefit plans referred
to in the Registration Statement, the General Disclosure Package and the Prospectus or pursuant to the exercise of convertible securities
or options referred to in the Registration Statement, the General Disclosure Package and the Prospectus). The outstanding shares of capital
stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable. None of the outstanding shares
of capital stock of the Company were issued in violation of the preemptive or other similar rights of any securityholder of the Company.
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(xiii) Authorization
of Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(xiv) Authorization
and Description of Securities. The Securities to be purchased by the Underwriters from the Company have been duly authorized for
issuance and sale to the Underwriters pursuant to this Agreement and, when issued and delivered by the Company pursuant to this Agreement
against payment of the consideration set forth herein, will be validly issued and fully paid and non-assessable; and the issuance of
the Securities is not subject to the preemptive or other similar rights of any securityholder of the Company. The Common Stock conforms
to all statements relating thereto contained in the Registration Statement, the General Disclosure Package and the Prospectus and such
description conforms to the rights set forth in the instruments defining the same. No holder of Securities will be subject to personal
liability by reason of being such a holder.
(xv) Registration
Rights. There are no persons with registration rights or other similar rights to have any securities registered for sale pursuant
to the Registration Statement or otherwise registered for sale or sold by the Company under the 1933 Act pursuant to this Agreement.
(xvi) Absence
of Violations, Defaults and Conflicts. Neither the Company nor any of its subsidiaries is (A) in violation of its charter, by-laws
or similar organizational document, (B) in default in the performance or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument
to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound or to which any of the properties
or assets of the Company or any subsidiary is subject (collectively, “Agreements and Instruments”), except for such defaults
that would not, singly or in the aggregate, result in a Material Adverse Effect, or (C) in violation of any law, statute, rule,
regulation, judgment, order, writ or decree of any arbitrator, court, governmental body, regulatory body, administrative agency or other
authority, body or agency having jurisdiction over the Company or any of its subsidiaries or any of their respective properties, assets
or operations (each, a “Governmental Entity”), except for such violations that would not, singly or in the aggregate, result
in a Material Adverse Effect. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated
herein and in the Registration Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities
and the use of the proceeds from the sale of the Securities as described therein under the caption “Use of Proceeds”) and
compliance by the Company with its obligations hereunder have been duly authorized by all necessary corporate action and do not and will
not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties
or assets of the Company or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults
or Repayment Events or liens, charges or encumbrances that would not, singly or in the aggregate, result in a Material Adverse Effect),
nor will such action result in any violation of the provisions of the charter, by-laws or similar organizational document of the Company
or any of its subsidiaries or any law, statute, rule, regulation, judgment, order, writ or decree of any Governmental Entity. As used
herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence
of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by the Company or any of its subsidiaries.
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(xvii) Absence
of Labor Dispute. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees
of the Company, which would 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 of its subsidiaries, is, or is now expected to be, in violation of any material term of any employment
contract, confidentiality, disclosure or proprietary information agreement or non-competition agreement, or any other contract or
agreement or any restrictive covenant in favor of any third party, and the continued employment of each such executive officer does
not subject the Company or any of its subsidiaries to any liability with respect to any of the foregoing matters. The Company and
its subsidiaries are in compliance with all U.S. federal, state, local and foreign laws and regulations relating to employment and
employment practices, terms and conditions of employment and wages and hours, except where the failure to be in compliance would
not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(xviii) Absence
of Proceedings. 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 this Agreement or the
Securities, or (ii) would, 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. 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 to the Company’s knowledge 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 1934
Act or the 1933 Act.
(xix) Compliance
with ERISA. (A) Each employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”), for which the Company or any member of its “Controlled Group”
(defined as any entity, whether or not incorporated, that is under common control with the Company within the meaning of
Section 4001(a)(14) of ERISA or any entity that would be regarded as a single employer with the Company under
Section 414(b),(c),(m) or (o) of the Internal Revenue Code of 1986, as amended (the “Code”)) would have
any liability (each, a “Plan”) has been maintained in compliance with its terms and the requirements of any applicable
statutes, orders, rules and regulations, including but not limited to ERISA and the Code; (B) no prohibited transaction,
within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Plan, excluding
transactions effected pursuant to a statutory or administrative exemption; (C) for each Plan that is subject to the funding
rules of Section 412 of the Code or Section 302 of ERISA, no Plan has failed (whether or not waived), or is
reasonably expected to fail, to satisfy the minimum funding standards (within the meaning of Section 302 of ERISA or
Section 412 of the Code) applicable to such Plan; (D) no Plan is, or is reasonably expected to be, in “at
risk status” (within the meaning of Section 303(i) of ERISA) and no Plan that is a “multiemployer plan”
within the meaning of Section 4001(a)(3) of ERISA is in “endangered status” or “critical status”
(within the meaning of Sections 304 and 305 of ERISA) (E) no “reportable event” (within the meaning of
Section 4043(c) of ERISA and the regulations promulgated thereunder) has occurred or is reasonably expected to occur; (F)
each Plan that is intended to be qualified under Section 401(a) of the Code is so qualified, and nothing has occurred,
whether by action or by failure to act, which would cause the loss of such qualification; (G) neither the Company nor any
member of the Controlled Group has incurred, nor reasonably expects to incur, any liability under Title IV of ERISA (other than
contributions to the Plan or premiums to the Pension Benefit Guarantee Corporation, in the ordinary course and without default) in
respect of a Plan (including a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA); and
(H) none of the following events has occurred or is reasonably likely to occur: (i) a material increase in the aggregate
amount of contributions required to be made to all Plans by the Company or its Controlled Group affiliates in the current fiscal
year of the Company and its Controlled Group affiliates compared to the amount of such contributions made in the Company’s and
its Controlled Group affiliates’ most recently completed fiscal year; or (ii) a material increase in the Company and its
subsidiaries’ “accumulated post-retirement benefit obligations” (within the meaning of Accounting Standards
Codification Topic 715-60) compared to the amount of such obligations in the Company and its subsidiaries’ most recently
completed fiscal year, except in each case with respect to the events or conditions set forth in (A) through (H) hereof,
as would not, individually or in the aggregate, have a Material Adverse Effect.
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(xx) Accuracy
of Exhibits. There are no contracts or documents which are required to be described in the Registration Statement, the General Disclosure
Package or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required,
except where the lack of description or filing would not have a Material Adverse Effect.
(xxi) Absence
of Further Requirements. No filing with, or authorization, approval, consent, license, order, registration, qualification or decree
of, any Governmental Entity is necessary or required for the performance by the Company of its obligations hereunder, in connection with
the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement, except
such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the rules of the Nasdaq Capital
Market, and state securities laws or the rules of Financial Industry Regulatory Authority, Inc. (“FINRA”).
(xxii) Possession
of Licenses and Permits. The Company and its subsidiaries possess such permits, licenses, approvals, consents and other authorizations
(collectively, “Governmental Licenses”) issued by the appropriate Governmental Entities necessary to conduct the business
now operated by them, except where the failure so to possess would not, singly or in the aggregate, result in a Material Adverse Effect.
The Company and its subsidiaries are in compliance with the terms and conditions of all Governmental Licenses, except where the failure
so to comply would not, singly or in the aggregate, result in a Material Adverse Effect. All of the Governmental Licenses are valid and
in full force and effect, except when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be
in full force and effect would not, singly or in the aggregate, result in a Material Adverse Effect. Neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the suspension, revocation or modification of any Governmental Licenses
which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Effect.
(xxiii) Title
to Property. The Company and its 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 its
subsidiaries, in each case free and clear of any lien, charge, pledge, security interest, encumbrance, right of first refusal,
preemptive right or other restriction (a “Lien”), except for (A) 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 (B) Liens for the payment of federal, state or other taxes, for which appropriate reserves have been made
therefor in accordance with GAAP and the payment of which is neither delinquent nor subject to penalties. Any real property and
facilities held under lease by the Company and the subsidiaries are held by them under valid, subsisting and enforceable leases with
which the Company and the subsidiaries are in compliance, except where the failure to so comply would not reasonably be expected to
result in a Material Adverse Effect.
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(xxiv) Possession
of Intellectual Property. The Company and its subsidiaries own or have rights to use, free and clear of all Liens, all patents, patent
applications, trademarks, trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other
intellectual property rights and similar rights (collectively, the “Intellectual Property Rights”) used in or necessary to
operate their respective businesses as described in the Registration Statement, the General Disclosure Package and the Prospectus, except
where the failure to so would not result in a Material Adverse Effect. 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, terminate
or be abandoned, except for such notices that would not, singly or in the aggregate, result in a Material Adverse Effect. Neither the
Company nor any subsidiary has received a written notice of a claim or otherwise has any knowledge (A) that the conduct of their
respective businesses infringes, misappropriates or otherwise violates the Intellectual Property Rights of any Person, or (B) regarding
any challenge to the validity, scope, enforceability or ownership of the Intellectual Property Rights of the Company or any of its subsidiaries,
except as would not have or reasonably be expected to not have a Material Adverse Effect. To the knowledge of the Company, all Intellectual
Property Rights of the Company or any of its subsidiaries are valid and enforceable and there is no existing infringement, misappropriation
or other violation by another Person of any such Intellectual Property Rights. The Company and each of its subsidiaries have taken reasonable
security measures to protect the secrecy, confidentiality and value of all of their Intellectual Property Rights, except where failure
to do so would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
(xxv) Open
Source Software. (A) The Company and each of its subsidiaries use and have used any and all software and other materials
distributed under a “free,” “open source,” or similar licensing model (including but not limited to the MIT
License, Apache License, GNU General Public License, GNU Lesser General Public License and GNU Affero General Public License)
(“Open Source Software”) in compliance with all license terms applicable to such Open Source Software; (B) the
Company and each of its subsidiaries have not used or distributed, and do not use or distribute, any Open Source Software in any
manner that requires or has required (i) the Company or any of its subsidiaries to permit reverse engineering of any software
code or other technology owned by the Company or its subsidiaries or (ii) any software code or other technology owned by the
Company or any of its subsidiaries to be (1) disclosed or distributed in source code form, (2) licensed for the purpose of
making derivative works or (3) redistributed at no charge; and (C) no third party has possession of, or any current
or contingent right to access or possess, any proprietary source code of the Company or any of its subsidiaries.
(xxvi) Environmental
Laws. The Company and each of its subsidiaries (A) are in compliance with all federal, state, local and foreign laws
relating to pollution or protection of human health or the environment (including ambient air, surface water, groundwater, land
surface or subsurface strata), including laws relating to emissions, discharges, releases or threatened releases of chemicals,
pollutants, contaminants, or toxic or hazardous substances or wastes (collectively, “Hazardous Materials”) into the
environment, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Materials, as well as all authorizations, codes, decrees, demands, or demand letters, injunctions,
judgments, licenses, notices or notice letters, orders, permits, plans or regulations, issued, entered, promulgated or approved
thereunder (“Environmental Laws”); (B) have received all permits licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses; (C) are in compliance with all terms and conditions of
any such permit, license or approval, and (D) are not subject to liability relating to contamination by Hazardous Materials
where in each clause (A), (B), (C), and (D) the failure to so comply or such liability could be reasonably expected to have,
individually or in the aggregate, a Material Adverse Effect.
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(xxvii) Accounting
Controls and Disclosure Controls. The Company and each of its subsidiaries maintain effective internal control over financial
reporting (as defined under Rules 13-a15 and 15d-15 under the 1934 Act Regulations) and a system of internal accounting
controls sufficient to provide reasonable assurances that (A) transactions are executed in accordance with management’s
general or specific authorization; (B) transactions are recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain accountability for assets; (C) access to assets is permitted only in accordance with
management’s general or specific authorization; (D) the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with respect to any differences; and (E) the interactive
data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, the General
Disclosure Package and the Prospectus fairly presents the information called for in all material respects and is prepared in
accordance with the Commission's rules and guidelines applicable thereto. Except as described in the Registration Statement,
the General Disclosure Package and the Prospectus, since the end of the Company’s most recent audited fiscal year, there has
been (i) no material weakness in the Company’s internal control over financial reporting (whether or not remediated) and
(ii) no change in the Company’s internal control over financial reporting that has materially adversely affected, or is
reasonably likely to materially adversely affect, the Company’s internal control over financial reporting. The Company and
each of its subsidiaries maintain an effective system of disclosure controls and procedures (as defined in Rule 13a-15 and
Rule 15d-15 under the 1934 Act Regulations) that are designed to ensure that information required to be disclosed by the
Company in the reports that it files or submits under the 1934 Act is recorded, processed, summarized and reported, within the time
periods specified in the Commission’s rules and forms, and is accumulated and communicated to the Company’s
management, including its principal executive officer or officers and principal financial officer or officers, as appropriate, to
allow timely decisions regarding disclosure.
(xxviii) Compliance
with the Sarbanes-Oxley Act. There is and has been no failure on the part of the Company or any of the Company’s directors
or officers, in their capacities as such, to comply in all material respects with any provision of the Sarbanes-Oxley Act of 2002, as
amended, and the rules and regulations promulgated in connection therewith, including Section 402 related to loans and Sections
302 and 906 related to certifications.
(xxix) Payment
of Taxes. 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 (A) has made or filed all United States federal, state, local
and foreign tax returns, reports and declarations required by any jurisdiction to which it is subject, (B) has paid all taxes
and other governmental assessments and charges shown to be due on such returns, reports and declarations or otherwise assessed,
except for assessments against which appeals have been or will be promptly taken and as to which adequate reserves have been
provided, and (C) has set aside on its books provision reasonably adequate for the payment of all taxes for periods subsequent
to the periods to which such returns, reports and 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.
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(xxx) Insurance.
The Company and each of its subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary in the businesses in which the Company and each of its subsidiaries are engaged, including,
but not limited to, directors and officers insurance coverage. Neither the Company nor any subsidiary has any reason to believe that
it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business without a significant increase in cost.
(xxxi) Investment
Company Act. The Company is not required, and upon the issuance and sale of the Securities as herein contemplated and the application
of the net proceeds therefrom as described in the Registration Statement, the General Disclosure Package and the Prospectus will not
be required, to register as an “investment company” under the Investment Company Act of 1940, as amended.
(xxxii) Absence
of Manipulation. Neither the Company nor any affiliate of the Company has taken, nor will the Company or any affiliate of the Company
take, directly or indirectly, any action which is designed, or would be expected, to cause or result in, or which constitutes, the stabilization
or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities or to result in a violation
of Regulation M under the 1934 Act (“Regulation M”).
(xxxiii) Anti-Corruption
and Anti-Bribery Laws. Neither the Company nor any of its subsidiaries nor any director, officer or employee of the Company or any
of its subsidiaries nor, to the knowledge of the Company, any agent, affiliate or other person associated with or acting on behalf of
the Company or any of its subsidiaries has (A) used any corporate funds for any unlawful contribution, gift, entertainment or other
unlawful expense relating to political activity; (B) made or taken an act in furtherance of an offer, promise or authorization of
any direct or indirect unlawful payment or benefit to any foreign or domestic government official or employee, including of any government-owned
or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any
of the foregoing, or any political party or party official or candidate for political office; (C) violated or is in violation of
any provision of the Foreign Corrupt Practices Act of 1977, as amended, or any applicable law or regulation implementing the OECD Convention
on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offence under the Bribery Act
2010 of the United Kingdom or any other applicable anti-bribery or anti-corruption law; or (D) made, offered, agreed, requested
or taken an act in furtherance of any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff, influence
payment, kickback or other unlawful or improper payment or benefit. The Company and its subsidiaries have instituted, maintained and
enforced, and will continue to maintain and enforce policies and procedures designed to promote and ensure compliance with all applicable
anti-bribery and anti-corruption laws.
(xxxiv) Money
Laundering Laws. The operations of the Company and its subsidiaries are and have been conducted at all times in compliance with
applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, applicable money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money
Laundering Laws”), and no Action 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.
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(xxxv) OFAC.
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 (A) currently subject to any sanctions administered or enforced by the U.S. Government,
including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) or
the U.S. Department of State and including, without limitation, the designation as a “specially designated national” or
“blocked person,” the United Nations Security Council, the European Union, His Majesty’s Treasury, or other
relevant sanctions authority (“Sanctions”); (B) located, organized or resident in a country or territory that is
the subject of Sanctions, including, without limitation, Crimea, the so-called Donetsk People’s Republic, the so-called
Luhansk People’s Republic, the Kherson or Zaporizhzhia regions of Ukraine, Cuba, Iran, North Korea, and Syria (with
respect to Syria only until July 1, 2025) or (C) owned or controlled by any person described in (A) or (B); and the
Company will not directly or indirectly use the proceeds of the sale of the Securities, or lend, contribute or otherwise make
available such proceeds to any subsidiaries, joint venture partners or other Person, to fund or facilitate any activities of or
business with any Person, or in any country or territory, that, at the time of such funding, is the subject or the target of
Sanctions or in any other manner that will result in a violation by any Person (including any Person participating in the
transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions. Since April 24, 2019, the Company nor any of
its subsidiaries have knowingly engaged in or are now knowingly engaged in any dealings or transactions with any person that at the
time of the dealing or transaction is or was the subject or the target of Sanctions or with any Sanctioned Country.
(xxxvi) Outbound
Investment Security Program. Neither the Company nor any of its subsidiaries is a “covered foreign person”, as that term
is defined in 31 C.F.R. § 850.209. Neither the Company nor any of its subsidiaries currently engages, or has plans to engage, directly
or indirectly, in a “covered activity”, as that term is defined in 31 C.F.R. § 850.208 (“Covered Activity”).
The Company does not have any joint ventures that engage in or plans to engage in any Covered Activity. The Company also does not, directly
or indirectly, hold a board seat on, have a voting or equity interest in, or have any contractual power to direct or cause the direction
of the management or policies of any person or persons that engages or plans to engage in any Covered Activity.
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(xxxvii) Government
Contracts. Except as would not reasonably be expected individually or in the aggregate to have a Material Adverse Effect, with
respect to each Government Contract (as defined below): (A) during the five years prior to the date of this Agreement,
(i) the Company and each of its subsidiaries have complied with all laws, regulations and requirements applicable to Government
Contracts or Government Proposals (as defined below) and the terms and conditions of (including all representations and
certifications relating to) each Government Contract and Government Proposal, including compliance with accounting requirements;
(ii) neither the Company nor any of its subsidiaries nor any of their respective Principals (as defined in 48 C.F.R. §
2.101), or, to the knowledge of the Company, current employees is or has been suspended or debarred, or proposed for debarment or
suspension from government contracting declared ineligible or determined non-responsible; (iii) no governmental body or prime
contractor or subcontractor has notified the Company or any of its subsidiaries, as applicable, in writing of any breach or
violation of any applicable law that remains unresolved and pertains to any Government Contract; (iv) neither the Company nor
any of its subsidiaries have received any notice of termination for default, cure notice or show cause notice that remains
unresolved and pertains to any Government Contract; (v) neither the Company nor any of its subsidiaries has received any
written or oral notice of any audits or investigations that pertains to a Government Contract; (vi) neither the Company nor any
of its subsidiaries have conducted an internal investigation or compliance review, or made any voluntary or mandatory disclosure to
any governmental body with respect to any irregularity, misstatement, significant overpayment or violation of law arising under or
relating to any Government Contract; (vii) neither the Company nor any of its subsidiaries have been subject to a civil fraud
lawsuit or received a subpoena or civil investigative demand issued by any governmental body regarding any Government Contract; and
(viii) neither the Company nor any of its subsidiaries is subject to claims or disputes in excess of $250,000 as a result of a
written finding or determination by a Governmental Authority, and no Governmental Authority has withheld or set off or attempted to
withhold or set off, an amount in excess of $250,000 otherwise due or payable to the Company or any subsidiaries under any
Government Contract; and (B) neither the Company nor any of its subsidiaries holds a facility security clearance as defined in
the national Industry Security Program Operating Manual (DoD 5220.22-M) or any similar security clearance issued by any non-U.S.
Governmental Authority. As used herein, “Government Contract” means any prime contract, subcontract, purchase order,
task order, delivery order, teaming agreement, joint venture agreement, strategic alliance agreement, basic order agreement, pricing
agreement, letter contract, grant, subgrant or other similar written arrangement of any kind, between the Company or any of its
subsidiaries, on the one hand, and any governmental body, on the other hand. As used herein, “Government Proposal” means
a bid, quote, tender, offer or proposal which, if accepted, would result in a Government Contract. As used herein, Governmental
Authority means any (1) federal, state, provincial, local, municipal or other government, (2) governmental or
quasi-governmental entity of any nature, including any governmental, regulatory, administrative or self-regulatory authority,
agency, bureau, board, commission, court, judicial or arbitral body, department, political subdivision, tribunal or other
instrumentality thereof, or (3) body exercising or entitled to exercise any administrative, executive, judicial, legislative,
police, regulatory, or taxing authority or power of any government;
(xxxviii) Export
Control Laws. To the knowledge of the Company, neither the Company nor any of its subsidiaries or, any of their respective
directors, officers, nor to the knowledge of the Company, any agent, employee or other person acting on behalf of the Company or any
of its subsidiaries have violated applicable export control laws and regulations, including without limitation the Arms Export
Control Act, the International Traffic in Arms Regulations, the U.S. Export Administration Act of 1979, as amended, the U.S.
International Emergency Economic Powers Act, and the Export Administration Regulations, or other relevant export controls authority
and there are no claims, complaints, charges, investigations or proceedings pending or expected or, to the knowledge of the Company,
threatened between the Company or any of its subsidiaries and any governmental authority under any applicable export control laws
and regulations. To the knowledge of the Company, each of the Company and its subsidiaries have obtained all of the specific
authorizations required by the U.S. Department of State’s provision of services and technical data to non-U.S. persons or the
export, re-export, or transfer of commodities, software, or technical data, and any other license that are required to comply with
applicable export control laws and regulations.
(xxxix) Statistical
and Market-Related Data. Any statistical and market-related data included in the Registration Statement, the General Disclosure Package
or the Prospectus are based on or derived from sources that the Company believes, after reasonable inquiry, to be reliable and accurate
and, to the extent required, the Company has obtained the written consent to the use of such data from such sources.
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(xl) Cybersecurity.
(A) The Company and each of its subsidiaries have complied, and are presently in compliance, in all material respects with all
internal and external privacy policies, contractual obligations, applicable laws, statutes, judgments, orders, rules and
regulations of any court or arbitrator or other governmental or regulatory authority and any other legal obligations, in each case,
relating to (i) the collection, use, transfer, import, export, storage, protection, disposal, disclosure or other processing by
the Company or any of its subsidiaries (or by a third party on behalf of the Company or any of its subsidiaries) of any data
(including any personal, personally identifiable, household, sensitive, confidential or regulated data) (“Data”) and/or
(ii) machine learning or other artificial intelligence technologies (“AI”) (collectively, the “Data Security
Obligations”); (B) the Company and each of its subsidiaries have not received any notification of or complaint regarding
and are unaware of any other facts that, individually or in the aggregate, would reasonably indicate non-compliance with any Data
Security Obligation; and (C) there is no pending or threatened Action involving the Company or any of its subsidiaries alleging
non-compliance with any Data Security Obligation, nor are there any incidents under internal review or investigations relating to
the same.
(xli) Data
Protection; No Breaches. The Company and each of its subsidiaries’ computers, systems, networks, hardware, software,
websites, applications, databases and other information technology assets and equipment (the “IT Systems”) are adequate
for, and operate and perform in all material respects as required in connection with, the operation of the respective businesses of
the Company and its subsidiaries as currently conducted, free and clear of all material bugs, errors, defects, Trojan horses, time
bombs, malware and other corruptants. The Company and each of its subsidiaries have made commercially reasonable efforts to protect
all IT Systems and Data used in connection with the operation of their respective businesses. Without limiting the foregoing, the
Company and each of its subsidiaries have established, maintained and complied with reasonable and appropriate information
technology, information security, cyber security and data protection controls, policies and procedures (including oversight, access
controls, encryption, technological and physical safeguards, and business continuity/disaster recovery and security plans) that are
designed to (A) maintain and protect the integrity, continuous operation, redundancy and security of all IT Systems and Data
used in connection with their respective businesses, and (B) protect against and prevent any breach, violation,
destruction, loss, unauthorized distribution, use or access, disablement, misappropriation or modification, or other compromise,
incident or misuse of or relating to any IT System or Data used in connection with the operation of the Company or its
subsidiaries’ businesses (“Breach”). There has been no such Breach, and the Company and each of its subsidiaries
have not been notified of and have no knowledge of any event or condition that would reasonably be expected to result in any such
Breach.
(b) Officer’s
Certificates. Any certificate signed by any officer of the Company or any of its subsidiaries delivered to the Representatives or
to counsel for the Underwriters shall be deemed a representation and warranty by the Company to each Underwriter as to the matters covered
thereby.
SECTION 2.
Sale and Delivery to Underwriters; Closing.
(a) Initial
Securities. On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees
to purchase from the Company at the price per share set forth in Schedule A, that proportion of 23,936,171 shares of Common Stock, as
the case may be, which the number of Initial Securities set forth in Schedule A opposite the name of such Underwriter, plus any additional
number of Initial Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof,
bears to the total number of Initial Securities, subject, in each case, to such adjustments among the Underwriters as Representatives
in their sole discretions shall make to eliminate any sales or purchases of fractional shares.
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(b) Option
Securities. In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions
herein set forth, the Company hereby grants an option to the Underwriters, severally and not jointly, to purchase up to an additional
3,590,425 shares of Common Stock, at the price per share set forth in Schedule A, less an amount per share equal to any dividends or
distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities. The option hereby
granted may be exercised for 30 days after the date hereof and may be exercised in whole or in part at any time from time to time upon
notice by the Representatives to the Company setting forth the number of Option Securities as to which the several Underwriters are then
exercising the option and the time and date of payment and delivery for such Option Securities. Any such time and date of delivery (a
“Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days after
the exercise of said option, nor in any event prior to the Closing Time. If the option is exercised as to all or any portion of the Option
Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities
then being purchased which the number of Initial Securities set forth in Schedule A opposite the name of such Underwriter bears to the
total number of Initial Securities, subject, in each case, to such adjustments as the Representatives in their sole discretions shall
make to eliminate any sales or purchases of fractional shares.
(c) Payment.
Payment of the purchase price for, and delivery of certificates or security entitlements for, the Initial Securities shall be made at
the offices of Simpson Thacher & Bartlett LLP, 425 Lexington Avenue, New York, NY 10017, or at such other place as shall be
agreed upon by the Representatives and the Company at 9:00 A.M. (New York City time) on the first (second, if the pricing occurs
after 4:30 P.M. (New York City time) on any given day) business day after the date hereof (unless postponed in accordance with the
provisions of Section 10), or such other time not later than ten business days after such date as shall be agreed upon by the Representatives
and the Company (such time and date of payment and delivery being herein called “Closing Time”).
In
addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for,
and delivery of certificates or security entitlements for, such Option Securities shall be made at the above-mentioned offices, or at
such other place as shall be agreed upon by the Representatives and the Company on each Date of Delivery as specified in the notice from
the Representatives to the Company.
Payment
shall be made to the Company by wire transfer of immediately available funds to bank accounts designated by the Company against delivery
to the Representatives for the respective accounts of the Underwriters of certificates or security entitlements for the Securities to
be purchased by them. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery
of, receipt for, and make payment of the purchase price for, the Initial Securities and the Option Securities, if any, which it has agreed
to purchase. The Representatives, individually and not as Representatives of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Initial Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds
have not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but such payment shall not relieve such
Underwriter from its obligations hereunder.
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SECTION 3.
Covenants of the Company. The Company covenants with each Underwriter as follows:
(a) Compliance
with Securities Regulations and Commission Requests. The Company, subject to Section 3(b), will comply with the
requirements of Rule 430B, and will notify the Representatives immediately, and confirm the notice in writing, (i) when
any post-effective amendment to the Registration Statement shall become effective or any amendment or supplement to the Prospectus
shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus, including any document
incorporated by reference therein or for additional information, (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or any post-effective amendment or of any order preventing or suspending
the use of any preliminary prospectus or the Prospectus, or of the suspension of the qualification of the Securities for offering or
sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination
pursuant to Section 8(d) or 8(e) of the 1933 Act concerning the Registration Statement and (v) if the Company
becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering of the Securities. The
Company will effect all filings required under Rule 424(b), in the manner and within the time period required by
Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain
promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission
and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent
the issuance of any stop order, prevention or suspension and, if any such order is issued, to obtain the lifting thereof at the
earliest possible moment. The Company shall pay the required Commission filing fees relating to the Securities within the time
required by Rule 456(b)(1)(i) under the 1933 Act Regulations without regard to the proviso therein and otherwise in
accordance with Rules 456(b) and 457(r) under the 1933 Act Regulations (including, if applicable, by updating the
“Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective
amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)).
(b) Continued
Compliance with Securities Laws. The Company will comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934
Act Regulation so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the
Registration Statement, the General Disclosure Package and the Prospectus. If at any time when a prospectus relating to the
Securities is (or, but for the exception afforded by Rule 172 of the 1933 Act Regulations (“Rule 172”), would
be) required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition shall
exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or for the Company, to (i) amend the
Registration Statement in order that the Registration Statement will not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) amend or
supplement the General Disclosure Package or the Prospectus in order that the General Disclosure Package or the Prospectus, as the
case may be, will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make
the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser or
(iii) amend the Registration Statement or amend or supplement the General Disclosure Package or the Prospectus, as the case may
be, in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly (A) give
the Representatives notice of such event, (B) prepare any amendment or supplement as may be necessary to correct such statement
or omission or to make the Registration Statement, the General Disclosure Package or the Prospectus comply with such requirements
and, a reasonable amount of time prior to any proposed filing or use, furnish the Representatives with copies of any such amendment
or supplement and (C) file with the Commission any such amendment or supplement; provided that the Company shall not file or
use any such amendment or supplement to which the Representatives or counsel for the Underwriters shall object. The Company will
furnish to the Underwriters such number of copies of such amendment or supplement as the Underwriters may reasonably request. The
Company has given the Representatives notice of any filings made pursuant to the 1934 Act or 1934 Act Regulations within 48 hours
prior to the Applicable Time; the Company will give the Representatives notice of its intention to make any such filing from the
Applicable Time to the Closing Time and will furnish the Representatives with copies of any such documents a reasonable amount of
time prior to such proposed filing, as the case may be, and will not file or use any such document to which the Representatives or
counsel for the Underwriters shall reasonably object.
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(c) Delivery
of Registration Statements. The Company has furnished or will deliver to the Representatives and counsel for the Underwriters, without
charge, signed copies of the Registration Statement as originally filed and each amendment thereto (including exhibits filed therewith
or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and signed copies
of all consents and certificates of experts, and will also deliver to the Representatives, without charge, a conformed copy of the Registration
Statement as originally filed and each amendment thereto (without exhibits) for each of the Underwriters. The copies of the Registration
Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(d) Delivery
of Prospectuses. The Company has delivered to each Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act.
The Company will furnish to each Underwriter, without charge, during the period when a prospectus relating to the Securities is (or,
but for the exception afforded by Rule 172, would be) required to be delivered under the 1933 Act, such number of copies of the
Prospectus (as amended or supplemented) as such Underwriter may reasonably request. The Prospectus and any amendments or supplements
thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant
to EDGAR, except to the extent permitted by Regulation S-T.
(e) Blue
Sky Qualifications. The Company will use commercially reasonable efforts, in cooperation with the Underwriters, to qualify the Securities
for offering and sale under the applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Representatives
may designate and to maintain such qualifications in effect so long as required to complete the distribution of the Securities; provided,
however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation
or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject.
(f) Rule 158.
The Company will timely file such reports pursuant to the 1934 Act as are necessary in order to make generally available to its securityholders
as soon as practicable an earnings statement for the purposes of, and to provide to the Underwriters the benefits contemplated by, the
last paragraph of Section 11(a) of the 1933 Act.
(g) Use
of Proceeds. The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the
Registration Statement, the General Disclosure Package and the Prospectus under “Use of Proceeds.”
(h) Listing.
The Company will use reasonable best efforts to effect and maintain the listing of the Common Stock (including the Securities) on the
Nasdaq Capital Market.
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(i) Restriction
on Sale of Securities. During a period of 60 days from the date of the Prospectus, the Company will not, without the prior
written consent of the Representatives, (i) directly or indirectly, offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer
or dispose of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or file
or confidentially submit any registration statement under the 1933 Act with respect to any of the foregoing, (ii) enter into
any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic
consequence of ownership of the Common Stock, whether any such swap or transaction described in clause (i) or (ii) above
is to be settled by delivery of Common Stock or other securities, in cash or otherwise, or (iii) publicly disclose the
intention to do any of the foregoing described in clauses (i) and (ii) above. The foregoing sentence shall not
apply to (A) the Securities to be sold hereunder, (B) any shares of Common Stock issued by the Company upon the exercise
of an option or warrant or the conversion of a security outstanding on the date hereof and referred to in the Registration
Statement, the General Disclosure Package and the Prospectus, (C) any shares of Common Stock issued or options to purchase
Common Stock granted pursuant to existing employee benefit plans of the Company referred to in the Registration Statement, the
General Disclosure Package and the Prospectus, (D) any shares of Common Stock issued pursuant to any non-employee director
stock plan or dividend reinvestment plan referred to in the Registration Statement, the General Disclosure Package and the
Prospectus, or (E) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock
issued in connection with any merger, acquisition of assets or other business combination, joint venture or strategic alliance,
provided that the aggregate number of shares of Common Stock issued or issuable pursuant to this clause (E) shall not exceed 5%
of the total number of shares of Common Stock outstanding immediately after the issuance and sale of the Securities and provided
further that each recipient of such shares or securities shall execute and deliver to the Representatives a lock-up agreement in
substantially the form of Exhibit A hereto for the remainder of the 60-day restricted period.
(j) Reporting
Requirements. The Company, during the period when a Prospectus relating to the Securities is (or, but for the exception afforded
by Rule 172, would be) required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act and 1934 Act Regulations. Additionally, the Company shall report
the use of proceeds from the issuance of the Securities as may be required under Rule 463 under the 1933 Act.
(k) Issuer
Free Writing Prospectuses. The Company agrees that, unless it obtains the prior written consent of the Representatives, it will not
make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute
a “free writing prospectus,” or a portion thereof, required to be filed by the Company with the Commission or retained by
the Company under Rule 433; provided that the Representatives will be deemed to have consented to the Issuer Free Writing Prospectuses
listed on Schedule B-2 hereto and any “road show that is a written communication” within the meaning of Rule 433(d)(8)(i) that
has been reviewed by the Representatives. The Company represents that it has treated or agrees that it will treat each such free writing
prospectus consented to, or deemed consented to, by the Representatives as an “issuer free writing prospectus,” as defined
in Rule 433, and that it has complied and will comply with the applicable requirements of Rule 433 with respect thereto, including
timely filing with the Commission where required, legending and record keeping. If at any time following issuance of an Issuer Free Writing
Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would
conflict with the information contained in the Registration Statement, any preliminary prospectus or the Prospectus or included or would
include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Representatives
and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict,
untrue statement or omission.
(l) Testing-the-Waters
Materials. If at any time following the distribution of any Written Testing-the-Waters Communication there occurred or occurs an
event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement
of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light
of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Representatives and will
promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement
or omission.
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SECTION 4. Payment
of Expenses.
(a) Expenses.
The Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including
(i) the preparation, printing and filing of the Registration Statement (including financial statements and exhibits) as
originally filed and each amendment thereto, (ii) the preparation, printing and delivery to the Underwriters of copies of each
preliminary prospectus, each Issuer Free Writing Prospectus and the Prospectus and any amendments or supplements thereto and any
costs associated with electronic delivery of any of the foregoing by the Underwriters to investors, (iii) the preparation,
issuance and delivery of the certificates or security entitlements for the Securities to the Underwriters, including any stock or
other transfer taxes and any stamp or other duties payable upon the sale, issuance or delivery of the Securities to the
Underwriters, (iv) the fees and disbursements of the Company’s counsel, accountants and other advisors, (v) the
qualification of the Securities under securities laws in accordance with the provisions of Section 3(e) hereof, including
filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection therewith and in connection with
the preparation of the Blue Sky Survey and any supplement thereto, (vi) the fees and expenses of any transfer agent or
registrar for the Securities, (vii) the costs and expenses of the Company relating to investor presentations on any “road
show” undertaken in connection with the marketing of the Securities, including without limitation, expenses associated with
the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show
presentations, travel and lodging expenses of the representatives and officers of the Company and any such consultants, and the cost
of aircraft and other transportation chartered in connection with the road show, (viii) the fees and expenses incurred in
connection with the listing of the Securities on the Nasdaq Capital Market and (ix) the costs and expenses (including,
without limitation, any damages or other amounts payable in connection with legal or contractual liability) associated with the
reforming of any contracts for sale of the Securities made by the Underwriters caused by a breach of the representation contained in
the third sentence of Section 1(a)(ii).
(b) Termination
of Agreement. If this Agreement is terminated by the Representatives in accordance with the provisions of Section 5 or Section 9(a)(i) or
(iii), hereof, the Company shall reimburse the Underwriters for all of their reasonable and documented out-of-pocket expenses actually
incurred, including the reasonable fees and disbursements of counsel for the Underwriters.
(c) Allocation
of Expenses. The provisions of this Section shall not affect any agreement that the Company may make for the sharing of such
costs and expenses.
SECTION 5.
Conditions of Underwriters’ Obligations. The obligations of the several Underwriters hereunder are subject to the accuracy
of the representations and warranties of the Company contained herein or in certificates of any officer of the Company or any of its
subsidiaries delivered pursuant to the provisions hereof, to the performance by the Company of its covenants and other obligations hereunder,
and to the following further conditions:
(a) Effectiveness
of Registration Statement. The Registration Statement, including any Rule 462(b) Registration Statement, has become
effective and, at the Closing Time, no stop order suspending the effectiveness of the Registration Statement or any post-effective
amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the
Prospectus has been issued and no proceedings for any of those purposes have been instituted or are pending or, to the
Company’s knowledge, contemplated by the Commission; and the Company has complied with each request (if any) from the
Commission for additional information. The Company shall have paid the required Commission filing fees relating to the Securities
within the time period required by Rule 456(b)(1)(i) under the 1933 Act Regulations without regard to the proviso therein
and otherwise in accordance with Rules 456(b) and 457(r) under the 1933 Act Regulations and, if applicable, shall
have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either
in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to
Rule 424(b).
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(b) Opinion
of Counsel for Company. At the Closing Time, the Representatives shall have received the favorable opinion, dated the Closing Time,
of Sheppard, Mullin, Richter & Hampton LLP, counsel for the Company, in form and substance satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the other Underwriters.
(c) Opinion
of Counsel for Underwriters. At the Closing Time, the Representatives shall have received the favorable opinion, dated the Closing
Time, of Simpson Thacher & Bartlett LLP, counsel for the Underwriters, in form and substance satisfactory to the Representatives,
together with signed or reproduced copies of such letter for each of the other Underwriters.
(d) Officers’
Certificate. At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information
is given in the Registration Statement, the General Disclosure Package or the Prospectus, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, and the Representatives shall have received a certificate
of the Chief Executive Officer or the President of the Company and of the chief financial or chief accounting officer of the Company,
dated the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) the representations and
warranties of the Company in this Agreement are true and correct with the same force and effect as though expressly made at and as of
the Closing Time, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Closing Time, and (iv) no stop order suspending the effectiveness of the Registration Statement under
the 1933 Act has been issued, no order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued
and no proceedings for any of those purposes have been instituted or are pending or, to their knowledge, contemplated.
(e) [Reserved.]
(f) Accountant’s
Comfort Letters. At the time of the execution of this Agreement, the Representatives shall have received from each of KPMG LLP and
dbbmckennon a letter, dated such date, in form and substance satisfactory to the Representatives, together with signed or reproduced
copies of such letter for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’
“comfort letters” to underwriters with respect to the financial statements and certain financial information contained in
the Registration Statement, the General Disclosure Package and the Prospectus.
(g) Bring-down
Comfort Letters. At the Closing Time, the Representatives shall have received from each of KPMG LLP and dbbmckennon a letter, dated
as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of
this Section, except that the specified date referred to shall be a date not more than three business days prior to the Closing Time.
(h) Approval
of Listing. At the Closing Time, the Securities shall have been approved for listing on the Nasdaq Capital Market, subject only to
official notice of issuance.
(i) Lock-up
Agreements. At the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Exhibit A
hereto signed by the persons listed on Schedule C hereto.
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(j) Maintenance
of Rating. Since the execution of this Agreement, there shall not have been any decrease in or withdrawal of the rating of any securities
of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62)
of the 1934 Act) or any notice given of any intended or potential decrease in or withdrawal of any such rating or of a possible change
in any such rating that does not indicate the direction of the possible change.
(k) Conditions
to Purchase of Option Securities. In the event that the Underwriters exercise their option provided in Section 2(b) hereof
to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements
in any certificates furnished by the Company and any of its subsidiaries hereunder shall be true and correct as of each Date of Delivery
and, at the relevant Date of Delivery, the Representatives shall have received:
(i) Officers’
Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial
or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 5(d) hereof
remains true and correct as of such Date of Delivery.
(ii) [Reserved.]
(iii) Opinion
of Counsel for Company. If requested by the Representatives, the favorable opinion of Sheppard, Mullin, Richter & Hampton
LLP, counsel for the Company, in form and substance satisfactory to counsel for the Underwriters, dated such Date of Delivery, relating
to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 5(b) hereof.
(iv) Opinion
of Counsel for Underwriters. If requested by the Representatives, the favorable opinion of Simpson Thacher & Bartlett LLP,
counsel for the Underwriters, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery
and otherwise to the same effect as the opinion required by Section 5(c) hereof.
(v) Bring-down
Comfort Letters. If requested by the Representatives, a letter from each KPMG LLP and dbbmckennon, in form and substance satisfactory
to the Representatives and dated such Date of Delivery, substantially in the same form and substance as the letter furnished to the Representatives
pursuant to Section 5(f) hereof, except that the “specified date” in the letter furnished pursuant to this paragraph
shall be a date not more than three business days prior to such Date of Delivery.
(l) Additional
Documents. At the Closing Time and at each Date of Delivery (if any) counsel for the Underwriters shall have been furnished with
such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities
as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of
the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities
as herein contemplated shall be satisfactory in form and substance to the Representatives and counsel for the Underwriters.
(m) Termination
of Agreement. If any condition specified in this Section shall not have been fulfilled when and as required to be
fulfilled, this Agreement, or, in the case of any condition to the purchase of Option Securities on a Date of Delivery which is
after the Closing Time, the obligations of the several Underwriters to purchase the relevant Option Securities, may be terminated by
the Representatives by notice to the Company at any time at or prior to Closing Time or such Date of Delivery, as the case may be,
and such termination shall be without liability of any party to any other party except as provided in Section 4 and
except that Sections 1, 6, 7, 8, 14, 15, 16 and 17 shall survive any such termination and remain in full force and effect.
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SECTION 6. Indemnification.
(a) Indemnification
of Underwriters. The Company agrees to indemnify and hold harmless each Underwriter, its officers, directors and affiliates (as such
term is defined in Rule 501(b) under the 1933 Act (each, an “Affiliate”)), its selling agents and each person,
if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any amendment thereto), including any information deemed to
be a part thereof pursuant to Rule 430B, or the omission or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement
of a material fact included (A) in any preliminary prospectus, any Issuer Free Writing Prospectus, any Written Testing-the-Waters
Communication, the General Disclosure Package or the Prospectus (or any amendment or supplement thereto), or (B) in any written
materials or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering
of the Securities (“Marketing Materials”), including any written roadshow or investor presentations made to investors by
the Company (whether in person or electronically), or the omission or alleged omission in any preliminary prospectus, Issuer Free
Writing Prospectus, any Written Testing-the-Waters Communication, Prospectus or in any Marketing Materials of a material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement
of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 6(e) below)
any such settlement is effected with the written consent of the Company;
(iii) against
any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by the Representatives), reasonably
incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid under (i) or (ii) above;
provided,
however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of
any untrue statement or omission or alleged untrue statement or omission made in the Registration Statement (or any amendment thereto),
including any information deemed to be a part thereof pursuant to the Rule 430B, the General Disclosure Package or the Prospectus
(or any amendment or supplement thereto) in reliance upon and in conformity with the Underwriter Information.
Insofar
as this indemnity agreement may permit indemnification for liabilities under the 1933 Act of any person who is a partner of an
Underwriter or who controls an underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
and who, at the date of this Agreement, is a director or officer of the Company or controls the Company within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, such indemnity agreement is subject to the undertaking of
the Company in the Registration Statement under Item 17 thereof.
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(b) [Reserved.]
(c) Indemnification
of Company, Directors and Officers. Each Underwriter severally agrees to indemnify and hold harmless the Company, its directors,
each of its officers who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act, against any and all loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendment thereto), including any information deemed to be a part
thereof pursuant to the Rule 430B, the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with the Underwriter Information.
(d) Actions
against Parties; Notification. Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result
thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement.
In the case of parties indemnified pursuant to Section 6(a) above, counsel to the indemnified parties shall be selected by
the Representatives, and, in the case of parties indemnified pursuant to Section 6(c) above, counsel to the indemnified parties
shall be selected by the Company. An indemnifying party may participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to the indemnified
party. In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation,
or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of
which indemnification or contribution could be sought under this Section 6 or Section 7 hereof (whether or not the indemnified
parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release
of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(e) Settlement
without Consent if Failure to Reimburse. If at any time an indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of
the nature contemplated by Section 6(a)(ii) effected without its prior written consent if (i) such settlement is entered
into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have
received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
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SECTION 7. Contribution.
If the indemnification provided for in Section 6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying
party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the
one hand, and the Underwriters, on the other hand, from the offering of the Securities pursuant to this Agreement or (ii) if
the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative fault of the Company, on the one hand, and of
the Underwriters, on the other hand, in connection with the statements or omissions which resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable considerations.
The
relative benefits received by the Company, on the one hand, and the Underwriters, on the other hand, in connection with the offering
of the Securities pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from
the offering of the Securities pursuant to this Agreement (before deducting expenses) received by the Company, on the one hand, and the
total underwriting discount received by the Underwriters, on the other hand, in each case as set forth on the cover of the Prospectus,
bear to the aggregate public offering price of the Securities as set forth on the cover of the Prospectus.
The
relative fault of the Company, on the one hand, and the Underwriters, on the other hand, shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Underwriters and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The
Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined
by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities,
claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding
the provisions of this Section 7, no Underwriter shall be required to contribute any amount in excess of the underwriting commissions
received by such Underwriter in connection with the Securities underwritten by it and distributed to the public.
No
person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
For
purposes of this Section 7, each person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act and each Underwriter’s Affiliates and selling agents shall have the same rights to contribution
as such Underwriter, and each director of the Company, each officer of the Company who signed the Registration Statement, and each person,
if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as the Company. The Underwriters’ respective obligations to contribute pursuant to this Section 7
are several in proportion to the number of Initial Securities set forth opposite their respective names in Schedule A hereto and not
joint.
SECTION 8. Representations,
Warranties and Agreements to Survive. All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its subsidiaries submitted pursuant hereto, shall remain operative and in
full force and effect regardless of (i) any investigation made by or on behalf of any Underwriter or its Affiliates or selling
agents, any person controlling any Underwriter, its officers or directors or any person controlling the Company and
(ii) delivery of and payment for the Securities.
- 26 -
SECTION 9. Termination
of Agreement.
(a) Termination.
The Representatives may terminate this Agreement, by notice to the Company at any time at or prior to the Closing Time (i) if there
has been, in the judgment of the Representatives, since the time of execution of this Agreement or since the respective dates as of which
information is given in the Registration Statement, the General Disclosure Package or the Prospectus, any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of business, (ii) if there has occurred any material
adverse change in the financial markets in the United States or the international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a prospective change in national or international political,
financial or economic conditions, in each case the effect of which is such as to make it, in the judgment of the Representatives, impracticable
or inadvisable to proceed with the completion of the offering or to enforce contracts for the sale of the Securities, (iii) if trading
in any securities of the Company has been suspended or materially limited by the Commission or the Nasdaq Capital Market, (iv) if
trading generally on the New York Stock Exchange or in the Nasdaq Capital Market has been suspended or materially limited, or minimum
or maximum prices for trading have been fixed, or maximum ranges for prices have been required, by any of said exchanges or by order
of the Commission, FINRA or any other governmental authority, (v) a material disruption has occurred in commercial banking or securities
settlement or clearance services in the United States or with respect to Clearstream or Euroclear systems in Europe, or (vi) if
a banking moratorium has been declared by either Federal or New York authorities.
(b) Liabilities.
If this Agreement is terminated pursuant to this Section, such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6, 7, 8, 14, 15, 16 and 17 shall survive such termination
and remain in full force and effect.
SECTION 10.
Default by One or More of the Underwriters. If one or more of the Underwriters shall fail at the Closing Time or a Date of Delivery
to purchase the Securities which it or they are obligated to purchase under this Agreement (the “Defaulted Securities”),
the Representatives shall have the right, within 24 hours thereafter, to make arrangements for one or more of the non-defaulting Underwriters,
or any other underwriters, to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Representatives shall not have completed such arrangements within such 24-hour
period, then:
(a) if
the number of Defaulted Securities does not exceed 10% of the number of Securities to be purchased on such date, each of the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of all non-defaulting Underwriters, or
(b) if
the number of Defaulted Securities exceeds 10% of the number of Securities to be purchased on such date, this Agreement or, with respect
to any Date of Delivery which occurs after the Closing Time, the obligation of the Underwriters to purchase, and the Company to sell,
the Option Securities to be purchased and sold on such Date of Delivery shall terminate without liability on the part of any non-defaulting
Underwriter.
- 27 -
No
action taken pursuant to this Section shall relieve any defaulting Underwriter from liability in respect of its default.
In
the event of any such default which does not result in a termination of this Agreement or, in the case of a Date of Delivery which is
after the Closing Time, which does not result in a termination of the obligation of the Underwriters to purchase and the Company to sell
the relevant Option Securities, as the case may be, either the (i) Representatives or (ii) the Company shall have the right
to postpone the Closing Time or the relevant Date of Delivery, as the case may be, for a period not exceeding seven days in order to
effect any required changes in the Registration Statement, the General Disclosure Package or the Prospectus or in any other documents
or arrangements. As used herein, the term “Underwriter” includes any person substituted for an Underwriter under this Section 10.
SECTION 11.
Notices. All notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notices to the Underwriters
shall be directed to Evercore Group L.L.C. at 55 East 52nd Street, New York, New York 10055, attention of General Counsel—Investment
Banking, BofA Securities, Inc. at One Bryant Park, New York, New York 10036, attention of Syndicate Department (email: [***]), with
a copy to ECM Legal (email: [***]) and notices to the Company shall be directed to it at 2800 S. West Temple, Suite 5, South Salt
Lake, Utah, 84115 attention of Kirk Nord.
SECTION 12.
No Advisory or Fiduciary Relationship. The Company acknowledges and agrees that (a) the purchase and sale of the Securities
pursuant to this Agreement, including the determination of the public offering price of the Securities and any related discounts and
commissions, is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the
other hand, and does not constitute a recommendation, investment advice, or solicitation of any action by the Underwriters, (b) in
connection with the offering of the Securities and the process leading thereto, each Underwriter is and has been acting solely as a principal
and is not the agent or fiduciary of the Company, any of its subsidiaries, or its respective stockholders, creditors, employees or any
other party, (c) no Underwriter has assumed or will assume an advisory or fiduciary responsibility in favor of the Company with
respect to the offering of the Securities or the process leading thereto (irrespective of whether such Underwriter has advised or is
currently advising the Company, or any of its subsidiaries on other matters) and no Underwriter has any obligation to the Company with
respect to the offering of the Securities except the obligations expressly set forth in this Agreement, (d) the Underwriters and
their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company,
and (e) the Underwriters have not provided any legal, accounting, investment, regulatory or tax advice with respect to the offering
of the Securities and the Company has consulted its own legal, accounting, financial, regulatory and tax advisors to the extent it deemed
appropriate and (f) none of the activities of the Underwriters in connection with the transactions contemplated herein constitutes
a recommendation, investment advice or solicitation of any action by the Underwriters with respect to any entity or natural person.
SECTION 13. Recognition
of the U.S. Special Resolution Regimes.
(a) In
the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer
from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent
as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation,
were governed by the laws of the United States or a state of the United States.
- 28 -
(b) In
the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under
a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to
be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement
were governed by the laws of the United States or a state of the United States.
For
purposes of this Section 13, a “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in,
and shall be interpreted in accordance with, 12 U.S.C. § 1841(k). “Covered Entity” means any of the following:
(i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). “Default
Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81,
47.2 or 382.1, as applicable. “U.S. Special Resolution Regime” means each of (i) the Federal Deposit
Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer
Protection Act and the regulations promulgated thereunder.
SECTION 14.
Parties. This Agreement shall each inure to the benefit of and be binding upon the Underwriters, the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation,
other than the Underwriters, the Company and their respective successors and the controlling persons and officers and directors referred
to in Sections 6 and 7 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriters, the Company and their respective successors, and said controlling persons and officers
and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of
Securities from any Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 15.
Trial by Jury. The Company (on its behalf and, to the extent permitted by applicable law, on behalf of its stockholders and affiliates)
and each of the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial
by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
SECTION 16.
GOVERNING LAW. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF, THE STATE OF NEW YORK WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS.
SECTION 17. Consent
to Jurisdiction; Waiver of Immunity. Any legal suit, action or proceeding arising out of or based upon this Agreement or the
transactions contemplated hereby shall be instituted in (i) the federal courts of the United States of America located
in the City and County of New York, Borough of Manhattan or (ii) the courts of the State of New York located in the City and
County of New York, Borough of Manhattan (collectively, the “Specified Courts”), and each party irrevocably submits to
the exclusive jurisdiction (except for proceedings instituted in regard to the enforcement of a judgment of any such court, as to
which such jurisdiction is non-exclusive) of such courts in any such suit, action or proceeding. Service of any process, summons,
notice or document by mail to such party’s address set forth above shall be effective service of process for any suit, action
or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of
venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to
plead or claim in any such court that any such suit, action or other proceeding brought in any such court has been brought in an
inconvenient forum.
- 29 -
SECTION 18.
TIME. TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW
YORK CITY TIME.
SECTION 19.
Counterparts and Electronic Signatures. This Agreement may be executed in any number of counterparts, each of which shall be deemed
to be an original, but all such counterparts shall together constitute one and the same Agreement. Electronic signatures complying with
the New York Electronic Signatures and Records Act (N.Y. State Tech. §§ 301-309), as amended from time to time, or other applicable
law will be deemed original signatures for purposes of this Agreement. Transmission by telecopy, electronic mail or other transmission
method of an executed counterpart of this Agreement will constitute due and sufficient delivery of such counterpart.
SECTION 20.
Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
SECTION 21.
Compliance with USA PATRIOT Act. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed
into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective
clients, including the Company, which information may include the name and address of their respective clients, as well as other information
that will allow the Underwriters to properly identify their respective clients.
- 30 -
If
the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters and the Company in accordance
with its terms.
Very
truly yours,
RED
CAT HOLDINGS, INC.
By:
/s/ Christian Morrison
Name:
Christian Morrison
Title:
Chief Financial Officer
CONFIRMED
AND ACCEPTED,
as
of the date first above written: EVERCORE GROUP L.L.C.
By
/s/
Chris Buddin
Authorized
Signatory
BOFA
SECURITIES, INC.
By
/s/
Sam Orme
Authorized
Signatory
For themselves
and as Representatives of the other Underwriters named in Schedule A hereto.
- 31 -
SCHEDULE A
The public offering price
per share for the Securities shall be $9.40.
The purchase price per share
for the Securities to be paid by the several Underwriters shall be $8.9394, being an amount equal to the public offering price set forth
above less $0.4606 per share, subject to adjustment in accordance with Section 2(b) for dividends or distributions declared
by the Company and payable on the Initial Securities but not payable on the Option Securities.
Name of Underwriter
Number
of
Initial Securities
Evercore Group L.L.C.
9,891,989
BofA Securities, Inc
9,647,742
Needham & Company, LLC
2,747,775
Northland Securities, Inc
1,648,665
Total
23,936,171
- 32 -
SCHEDULE B-1
Pricing Terms
1. The Company
is selling 23,936,171 shares of Common Stock.
2. The
Company has granted an option to the Underwriters, severally and not jointly, to purchase up to an additional 3,590,425 shares of Common
Stock.
3. The public
offering price per share for the Securities shall be $9.40.
- 33 -
SCHEDULE B-2
Free Writing
Prospectuses
None.
- 34 -
SCHEDULE B-3
Written Testing-the-Waters
Communications
Investor Presentation, dated
May, 2026
- 35 -
SCHEDULE C
List of Persons
and Entities Subject to Lock-up
1. Christian
Ericson
2. Joseph Freedman
3. Paul Edward
Funk II
4. Geoffrey
Hitchcock
5. Nicholas
Liuzza Jr.
6. Christopher
Moe
7. Christian
Morrison
8. Jeffrey
Thompson
9. Kirk Nord
- 36 -
Exhibit A
Form of
lock-up from directors, officers or other stockholders pursuant to Section 5(i)
[See attached.]
- 37 -
Form of
Lock-Up Agreement
[•], 2026
Evercore Group L.L.C.
BofA
Securities, Inc.
as Representatives of the
several
Underwriters to be named in the
within mentioned Underwriting
Agreement
c/o
Evercore Group L.L.C.
55 East 52nd Street
New York, NY 10055
c/o
BofA Securities, Inc.
One Bryant Park
New York,
New York 10036
Re: Proposed
Public Offering by Red Cat Holdings, Inc.
Ladies and Gentlemen:
The
undersigned, a stockholder and/or an officer and/or director, as applicable, of Red Cat Holdings, Inc., a Nevada corporation (the
“Company”), understands that Evercore Group L.L.C. and BofA Securities, Inc., as representatives of the several underwriters
(collectively, the “Representatives”), propose to enter into an Underwriting Agreement (the “Underwriting Agreement”)
with the Company, providing for the public offering (the “Public Offering”) of shares of the Company’s common stock,
par value $0.001 per share (the “Common Stock”). In recognition of the benefit that the Public Offering will confer upon
the undersigned as a stockholder and/or an officer and/or director, as applicable, of the Company, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with each underwriter to be named in the Underwriting
Agreement that, during the period beginning on the date hereof and ending on the date that is 160 days from the date of the
Underwriting Agreement (the “Restricted Period”), the undersigned will not, without the prior written consent of the Representatives,
(i) directly or indirectly, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of any shares of the Company’s
Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, whether now owned or hereafter acquired
by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up
Securities”), or exercise any right with respect to the registration of any of the Lock-Up Securities, or file, cause to be filed
or cause to be confidentially submitted any registration statement in connection therewith, under the Securities Act of 1933, as amended,
(ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly,
the economic consequence of ownership of the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of
Common Stock or other securities, in cash or otherwise or (iii) publicly announce the intention to do any of the foregoing. If the
undersigned is an officer or director of the Company, the undersigned further agrees
that the foregoing provisions shall be equally applicable to any issuer-directed Securities the undersigned may purchase in the offering.
1 NTD: 30 days
for the lock-up of General Funk.
- 1 -
Notwithstanding
the foregoing, and subject to the conditions below, the undersigned may during the Restricted Period:
(a) transfer
the Lock-Up Securities without the prior written consent of the Representatives, provided that (1) the Representatives receive a
signed lock-up agreement for the balance of the lockup period from each donee, trustee, distributee, or transferee, as the case may be,
(2) any such transfer shall not involve a disposition for value, (3) such transfer is not required to be reported with the
Securities and Exchange Commission on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), and (4) the undersigned does not otherwise voluntarily effect any public filing or report regarding
such transfer:
(i) as a bona
fide gift or gifts, notwithstanding that such gift or gifts may be required to be reported
with the Securities and Exchange Commission on Form 4 in accordance with Section 16
of the Exchange Act;
(ii) by will
or intestacy;
(iii) to any
trust for the direct or indirect benefit of the undersigned or the immediate family of the
undersigned (for purposes of this letter (this “Lock-Up Agreement”), “immediate
family” shall mean any relationship by blood, marriage or adoption, not more remote
than first cousin);
(iv) to a corporation,
partnership, limited liability company or other entity of which the undersigned or the immediate
family of the undersigned are the legal and beneficial owner of all of the outstanding equity
securities or similar interests;
(v) to a nominee
or custodian of a person or entity to whom a disposition or transfer would be permissible
under clauses (i) through (iv) above;
(vi) as a distribution
to members, limited partners or stockholders of the undersigned;
(vii) by operation
of law, such as pursuant to a qualified domestic order, divorce settlement, divorce decree
or separation agreement, or related court order;
(viii) to the
Company from an employee of the Company upon death, disability or termination of employment,
in each case, of such employee; or
(ix) to the
Company in connection with the vesting, settlement, or exercise of restricted stock units,
options, warrants or other rights to purchase shares of Common Stock (including, in each
case, by way of “net” or “cashless” exercise), including for the
payment of exercise price and tax and remittance payments due as a result of the vesting,
settlement, or exercise of such restricted stock units, options, warrants or rights, provided
that any such shares of Common Stock received upon such exercise, vesting or settlement (other
than such shares as are transferred or surrendered to the Company in connection with such
vesting, settlement or exercise event) shall be subject to the terms of this Lock-Up Agreement,
and provided further that any such restricted stock units, options, warrants or rights are
held by the undersigned pursuant to an agreement or equity awards granted under a stock incentive plan or other equity award
plan, each such agreement or plan which is described in the Registration Statement, the General Disclosure Package and the Prospectus;
or
(x) to the
undersigned’s affiliates or to any investment fund or other entity controlled or managed
by the undersigned.
- 2 -
(b) exercise
outstanding options, settle restricted stock units or other equity awards or exercise outstanding warrants pursuant to plans described
in the Registration Statement, the General Disclosure Package and the Prospectus; provided that any Lock-Up Securities received upon
such exercise, vesting or settlement shall be subject to the terms of this Lock-Up Agreement; provided that if the undersigned is required
to make any filing under Section 16(a) of the Exchange Act, or other public filing, report or announcement during the Restricted
Period, the undersigned shall clearly indicate in the footnotes thereto that the filing relates to the circumstances described in this
clause and that the shares of Common Stock received upon the exercise or settlement, as applicable, of the stock option, warrant or restricted
stock unit or other right or vesting event are subject to this Lock-Up Agreement, and no public filing, report or announcement shall
be voluntarily made; and
(c) (1) establish
trading plans pursuant to Rule 10b5-1 under the Exchange Act for the transfer of Lock-Up Securities (each such plan, a “Trading
Plan”), provided that (i) such Trading Plans do not provide for the transfer of Lock-Up Securities during the Restricted Period
and (ii) no filing by any party under the Exchange Act or other public announcement shall be required or made voluntarily in connection
with such Trading Plan during the Restricted Period in contravention of this Lock-Up Agreement; and (2) transfer Lock-Up Securities
during the Restricted Period pursuant to a Trading Plan that is effect on the date hereof and disclosed to the Representatives prior
to the date hereof; provided, that any filing under the Exchange Act made in connection with such transfer shall clearly indicate in
the footnotes thereto that the filing relates to the circumstances described in this clause.
Furthermore,
the undersigned may sell shares of Common Stock of the Company purchased by the undersigned on the open market following the Public Offering
if and only if (i) such sales are not required to be reported in any public report or filing with the Securities and Exchange Commission,
or otherwise and (ii) the undersigned does not otherwise voluntarily effect any public filing or report regarding such sales.
The
undersigned acknowledges and agrees that the underwriters have neither provided any recommendation or investment advice nor solicited
any action from the undersigned with respect to the Public Offering of the Common Stock and the undersigned has consulted their own legal,
accounting, financial, regulatory, tax and other advisors to the extent deemed appropriate. The undersigned further acknowledges and
agrees that, although the underwriters may provide certain Regulation Best Interest and Form CRS disclosures or other related documentation
to you in connection with the Public Offering, the underwriters are not making a recommendation to you to participate in the Public Offering,
enter into this Lock-Up Agreement, or sell any shares of Common Stock at the price determined in the Public Offering, and nothing set
forth in such disclosures or documentation is intended to suggest that any underwriter is making such a recommendation.
The
undersigned hereby represents and warrants that the undersigned has full power, capacity and authority to enter into this Lock-Up Agreement.
The undersigned understands that the Company and the underwriters are relying upon this Lock-Up Agreement in proceeding toward the consummation
of the Public Offering. The undersigned further understands that this Lock-Up Agreement is irrevocable and shall be binding upon the
undersigned’s affiliates, legal representatives, successors and assigns.
- 3 -
The
undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar
against the transfer of the Lock-Up Securities except in compliance with the foregoing restrictions.
In
the event that a Representative withdraws or is terminated from, or declines to participate in, the Public Offering, all references in
this Lock-Up Agreement to the Representatives shall refer to the remaining Representative. If all Representatives withdraw, are terminated
from or decline to participate in the Public Offering, all references in this Lock-Up Agreement to the Representatives shall refer to
the lead left book runner in the Public Offering (“Replacement Entity”), and in such event, any written consent, waiver or
notice given or delivered in connection with this Lock-Up Agreement by or to such Replacement Entity shall be deemed to be sufficient
and effective for all purposes under this Lock-Up Agreement.
This
Lock-Up Agreement shall be governed by and construed in accordance with the laws of the State of New York.
This
Lock-Up Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts
shall together constitute one and the same Lock-Up Agreement. Electronic signatures complying with the New York Electronic Signatures
and Records Act (N.Y. State Tech. §§ 301-309), as amended from time to time, or other applicable law will be deemed original
signatures for purposes of this Lock-Up Agreement. Transmission by telecopy, electronic mail or other transmission method of an executed
counterpart of this Lock-Up Agreement will constitute due and sufficient delivery of such counterpart.
[Signature Page Follows]
- 4 -
Very
truly yours,
By:
(duly
authorized signature)
Name:
(please
print full name)
- 5 -
EX-5.1 — EXHIBIT 5.1
EX-5.1
Filename: tm2614279d7_ex5-1.htm · Sequence: 3
Exhibit 5.1
Sheppard, Mullin, Richter & Hampton LLP
12275 El Camino Real, Suite 100
San Diego, CA 92130-4092
858.720.8900 main
858.509.3691 fax
www.sheppardmullin.com
May 14, 2026
VIA EDGAR
Red Cat Holdings, Inc.
2800 S West Temple, Suite 5
South Salt Lake, UT 84115
Re: Registration Statement on Form S-3ASR
Ladies and Gentlemen:
We have acted as counsel to
Red Cat Holdings, Inc., a Nevada corporation (the “Company”), with respect to certain matters in connection with the
offering by the Company of 23,936,171 shares (the “Shares”) of common stock, par value $0.001 per share (the “Common
Stock”), pursuant to the Company’s Registration Statement on Form S-3ASR (No. 333-295792) (as amended, the “Registration
Statement”) filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act
of 1933, as amended (the “Act”), the prospectus included in the Registration Statement (the “Base Prospectus”),
and the preliminary prospectus supplement and final prospectus supplement filed by the Company with the Commission pursuant to Rule 424(b)
under the Act supplementing the Base Prospectus (the Base Prospectus, preliminary prospectus and final prospectus, are collectively referred
to herein as the “Prospectus”). The Shares are to be sold by the Company pursuant to that certain underwriting agreement
(the “Underwriting Agreement”), dated May 12, 2026, by and between the Company, Evercore Group L.L.C., BofA Securities,
Inc., and each of the other Underwriters named in Schedule A thereto (collectively, the “Underwriters”), as described
in the Prospectus.
This opinion letter is being
furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Act and it is understood that this opinion
letter is to be used only in connection with the offer and sale of the Shares while the Registration Statement is effective under the
Act.
In connection with this opinion
letter, we have examined and relied upon originals or copies, certified or otherwise identified to our satisfaction, of the Registration
Statement, the Prospectus, the Company’s Amended and Restated Articles of Incorporation, and Amended and Restated Bylaws, each as
currently in effect, the Underwriting Agreement, and such records, documents, certificates, memoranda and other instruments as in our
judgment are necessary or appropriate to enable us to render the opinion expressed below. We have assumed: the genuineness of all signatures,
including endorsements; the legal capacity and competency of all natural persons; the authenticity of all documents submitted to us as
originals; the conformity to originals of all documents submitted to us as copies, including facsimile, electronic, certified or photostatic
copies the authenticity of the originals of all documents submitted to us as copies; the accuracy, completeness and authenticity of certificates
of public officials; and the due authorization, execution and delivery of all documents by all persons other than the Company where authorization,
execution and delivery are prerequisites to the effectiveness thereof. As to any facts relevant to the opinion expressed below, we relied
upon statements and representations of officers and other representatives of the Company and others and of public officials and have not
independently established or verified such facts.
Based upon the foregoing and
subject to the qualifications and assumptions stated herein, we are of the opinion that, (i) the Shares have been duly authorized by all
requisite corporate action on the part of the Company under the Nevada Revised Statutes (the “NRS”) and, when the Shares
are delivered and paid for by the purchasers in accordance with the terms of the Underwriting Agreement and when evidence of the issuance
thereof is duly recorded in the Company’s books and records, the Shares will be validly issued, fully paid and nonassessable.
Sheppard, Mullin, Richter & Hampton LLP
12275 El Camino Real, Suite 100
San Diego, CA 92130-4092
858.720.8900 main
858.509.3691 fax
www.sheppardmullin.com
The opinion which we render
herein is expressly limited solely to those matters governed by the NRS and is based on the NRS as in effect on the date hereof. We express
no opinion to the extent that any other laws are applicable to the subject matter hereof and express no opinion and provide no assurance
with respect to any other laws or as to compliance with any federal or state securities law, rule or regulation or as to any matter pertaining
to the contents of the Registration Statement or the Prospectus, other than as expressly stated herein.
We hereby consent to the filing
of this opinion letter with the Commission as an exhibit to the Company’s Current Report on Form 8-K being filed on or about the
date hereof and incorporated by reference into the Registration Statement. We also hereby consent to the reference to our firm in the
“Legal Matters” section in the Prospectus. In giving this consent, we do not thereby admit that we are within the category
of persons whose consent is required under Section 7 of the Act or the General Rules and Regulations under the Act.
This opinion letter is rendered
as of the date first written above and we disclaim any obligation to advise you of facts, circumstances, events or developments which
hereafter may be brought to our attention and which may alter, affect or modify the opinion expressed herein. Our opinion is expressly
limited to the matters set forth above and we render no opinion, whether by implication or otherwise, as to any other matters relating
to the Company, the Shares or any other agreements or transactions that may be related thereto or contemplated thereby. We are expressing
no opinion as to any obligations that parties other than the Company may have under or in respect of the Shares, or as to the effect that
their performance of such obligations may have upon any of the matters referred to above. No opinion may be implied or inferred beyond
the opinion expressly stated above.
Respectfully submitted,
/s/ Sheppard, Mullin, Richter & Hampton LLP
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
EX-99.1 — EXHIBIT 99.1
EX-99.1
Filename: tm2614279d7_ex99-1.htm · Sequence: 4
Exhibit 99.1
Red Cat Announces Proposed
Public Offering of Common Stock
SALT LAKE CITY, UT., May 12, 2026 (GLOBE NEWSWIRE)
-- Red Cat Holdings, Inc. (Nasdaq: RCAT) (“Red Cat” or “Company”), a U.S.-based provider of advanced all-domain
drone and robotic solutions for defense and national security, announced today that it intends to offer and sell shares of its common
stock in an underwritten public offering. Red Cat is offering $200.0 million of shares of its common stock. In connection with the offering,
Red Cat expects to grant the underwriters a 30-day option to purchase up to an additional $30.0 million of shares of common stock at the
public offering price, less underwriting discounts and commissions. The offering is subject to market and other conditions, and there
can be no assurance as to whether or when the offering may be completed, or as to the actual size or terms of the offering.
The Company intends to use net proceeds from
the offering for general corporate purposes and continued acceleration of strategic growth initiatives, including, but not limited to,
acquisitions or business expansion, research and development, capital expenditures and working capital.
Evercore ISI and BofA Securities are acting
as the joint lead bookrunners for the offering.
The shares of common stock being offered
by Red Cat pursuant to an automatically effective shelf registration statement that was filed with the Securities and Exchange Commission
(the “SEC”) on May 12, 2026. The offering is being made only by means of a prospectus and prospectus supplement that form
a part of the registration statement. A preliminary prospectus supplement relating to and describing the terms of the offering will be
filed with the SEC and will be available on the SEC’s website at www.sec.gov. Copies of the preliminary prospectus supplement and
the accompanying prospectus can be obtained, when available, from Evercore Group L.L.C., 55 East 52nd Street, New York, New York 10055,
by telephone at (888) 474-0200, or by email at ecm.prospectus@evercore.com or BofA Securities, Attention: Prospectus Department,
NC1-022-02-25, 201 North Tryon Street, Charlotte, North Carolina 28255-0001, or by e-mail at dg.prospectus_requests@bofa.com. The final
terms of the offering will be disclosed in a final prospectus supplement to be filed with the SEC.
This press release does not constitute an
offer to sell, or the solicitation of an offer to buy, these securities, nor will there be any sale of these securities in any state or
other jurisdiction in which such offer, solicitation or sale is not permitted.
About
Red Cat Holdings, Inc.
Red
Cat (Nasdaq: RCAT) is a U.S.-based provider of advanced all-domain drone and robotic solutions for defense and national security.
Through its wholly owned subsidiaries, Teal Drones and FlightWave Aerospace, Red Cat develops American-made hardware and software
that support military, government, and public safety operations across air, land, and sea. Its Family of Systems, led by Black
Widow™, delivers unmatched tactical capabilities in small, unmanned aircraft systems (sUAS). Expanding into the maritime
domain through Blue Ops, Inc., Red Cat is also innovating in uncrewed surface vessels (USVs), delivering integrated platforms
designed to enhance safety and multi-domain mission effectiveness.
-1-
Safe Harbor Forward-Looking Statements
This
press release contains "forward-looking statements" that are subject to substantial risks and uncertainties. All statements,
other than statements of historical fact, contained in this press release are forward-looking statements. Forward-looking statements contained
in this press release may be identified by the use of words such as "anticipate," "believe," "contemplate,"
"could," "estimate," "expect," "intend," "seek," "may," "might,"
"plan," "potential," "predict," "project," "target," "aim," "should,"
"will," "would," or the negative of these words or other similar expressions, although not all forward-looking statements
contain these words. Such statements include, but are not limited to, statements relating to the expected timing and size of the offering,
the grant by Red Cat to the underwriters of an option to purchase additional shares (or exercise by the underwriters, if applicable),
and Red Cat’s intended use of proceeds from the offering. Forward-looking statements are based on Red Cat Holdings, Inc.'s current
expectations and are subject to inherent uncertainties, risks and assumptions that are difficult to predict. Further, certain forward-looking
statements are based on assumptions as to future events that may not prove to be accurate. These and other risks and uncertainties are
described more fully in the section titled "Risk Factors" in the Form 10-K filed with the SEC on March 19, 2026 and the Form
10-Q filed with the SEC on May 7, 2026, Red Cat’s preliminary prospectus supplement to be filed with the SEC and the other filings
that Red Cat makes with the SEC. Forward-looking statements contained in this announcement are made as of this date, and Red Cat undertakes
no duty to update such information except as required under applicable law.
Contact:
INVESTORS:
Ankit Hira
Solebury Strategic Communications for Red Cat Holdings, Inc.
E-mail: RCAT@soleburystrat.com
NEWS MEDIA:
Peter Moran
Phone: (347) 880-2895
Email: peter@indicatemedia.com
-2-
EX-99.2 — EXHIBIT 99.2
EX-99.2
Filename: tm2614279d7_ex99-2.htm · Sequence: 5
Exhibit 99.2
Red Cat Announces Pricing
of Public Offering of Common Stock
SALT LAKE CITY, UT., May 12, 2026 (GLOBE NEWSWIRE)
-- Red Cat Holdings, Inc. (Nasdaq: RCAT) (“Red Cat” or “Company”), a U.S.-based provider of advanced all-domain
drone and robotic solutions for defense and national security, announced today the pricing of an underwritten public offering at a price
to the public of $9.40 per share. Red Cat is selling 23,936,171 shares of its common stock. The gross proceeds from the offering to the
Company are expected to be approximately $225.0 million, before deducting underwriting discounts and commissions and other offering expenses.
The offering is expected to close on or about May 14, 2026, subject to customary closing conditions. In addition, Red Cat has granted
the underwriters a 30-day option to purchase up to an additional 3,590,425 shares of its common stock at the public offering price, less
underwriting discounts and commissions.
The Company intends to use net proceeds from
the offering for general corporate purposes and continued acceleration of strategic growth initiatives, including, but not limited to,
acquisitions or business expansion, research and development, capital expenditures and working capital.
Evercore ISI and BofA Securities are acting
as the joint lead bookrunners for the offering. Needham & Company and Northland Capital Markets are acting as co-managers for the
offering.
The shares of common stock are being offered
by Red Cat pursuant to an automatically effective shelf registration statement that was filed with the Securities and Exchange Commission
(the “SEC”) on May 12, 2026. The offering is being made only by means of a prospectus and prospectus supplement that form
a part of the registration statement. A preliminary prospectus supplement relating to and describing the terms of the offering was filed
with the SEC and is available on the SEC’s website at www.sec.gov. Copies of the final prospectus supplement and the accompanying
prospectus can be obtained, when available, from Evercore Group L.L.C., 55 East 52nd Street, New York, New York 10055, by telephone at
(888) 474-0200, or by email at ecm.prospectus@evercore.com or BofA Securities, Attention: Prospectus Department, NC1-022-02-25, 201 North
Tryon Street, Charlotte, North Carolina 28255-0001, or by e-mail at dg.prospectus_requests@bofa.com. The final terms of the offering will
be disclosed in a final prospectus supplement to be filed with the SEC.
This press release does not constitute an
offer to sell, or the solicitation of an offer to buy, these securities, nor will there be any sale of these securities in any state or
other jurisdiction in which such offer, solicitation or sale is not permitted.
-1-
About
Red Cat Holdings, Inc.
Red
Cat (Nasdaq: RCAT) is a U.S.-based provider of advanced all-domain drone and robotic solutions for defense and national security. Through
its wholly owned subsidiaries, Teal Drones and FlightWave Aerospace, Red Cat develops American-made hardware and software that support
military, government, and public safety operations across air, land, and sea. Its Family of Systems, led by Black Widow™, delivers
unmatched tactical capabilities in small, unmanned aircraft systems (sUAS). Expanding into the maritime domain through Blue Ops, Inc.,
Red Cat is also innovating in uncrewed surface vessels (USVs), delivering integrated platforms designed to enhance safety and multi-domain
mission effectiveness.
Safe Harbor Forward-Looking Statements
This
press release contains "forward-looking statements" that are subject to substantial risks and uncertainties. All statements,
other than statements of historical fact, contained in this press release are forward-looking statements. Forward-looking statements contained
in this press release may be identified by the use of words such as "anticipate," "believe," "contemplate,"
"could," "estimate," "expect," "intend," "seek," "may," "might,"
"plan," "potential," "predict," "project," "target," "aim," "should,"
"will," "would," or the negative of these words or other similar expressions, although not all forward-looking statements
contain these words. Such statements include, but are not limited to, statements relating to the exercise by the underwriters of an option
to purchase additional shares and Red Cat’s intended use of proceeds from the offering. Forward-looking statements are based on
Red Cat Holdings, Inc.'s current expectations and are subject to inherent uncertainties, risks and assumptions that are difficult to predict.
Further, certain forward-looking statements are based on assumptions as to future events that may not prove to be accurate. These and
other risks and uncertainties are described more fully in the section titled "Risk Factors" in the Form 10-K filed with the
SEC on March 19, 2026 and the Form 10-Q filed with the SEC on May 7, 2026, Red Cat’s preliminary prospectus supplement filed with
the SEC and the other filings that Red Cat makes with the SEC. Forward-looking statements contained in this announcement are made as of
this date, and Red Cat undertakes no duty to update such information except as required under applicable law.
Contact:
INVESTORS:
Ankit Hira
Solebury Strategic Communications for Red Cat Holdings, Inc.
E-mail: RCAT@soleburystrat.com
NEWS MEDIA:
Peter Moran
Phone: (347) 880-2895
Email: peter@indicatemedia.com
-2-
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