Form 8-K
8-K — Odysight.ai Inc.
Accession: 0001493152-26-027515
Filed: 2026-06-05
Period: 2026-06-05
CIK: 0001577445
SIC: 7373 (SERVICES-COMPUTER INTEGRATED SYSTEMS DESIGN)
Item: Entry into a Material Definitive Agreement
Item: Financial Statements and Exhibits
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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 OR 15(d)
of
The Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported): June 5, 2026
ODYSIGHT.AI
INC.
(Exact
name of registrant as specified in its charter)
Nevada
001-42497
47-4257143
(State
or other jurisdiction
of
incorporation)
(Commission
File
Number)
(I.R.S.
Employer
Identification
No.)
12 Abba Hillel Silver RD, Sasson Hugi Tower
Ramat
Gan, Israel
5250606
(Address
of principal executive offices)
(Zip
Code)
+972
73 370-4690
(Registrant’s
telephone number, including area code)
Not
Applicable
(Former
name or former address, if changed since last report)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions:
☐
Written
communication 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-commencements
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 Securities Exchange Act of 1934:
Title
of each class
Trading
Symbol(s)
Name
of each exchange on which registered
Common Stock, $0.001 par value per share
ODYS
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
June 5, 2026, Odysight.ai Inc. (the “Company”) entered into a Sales Agreement (the “Sales Agreement”) with Roth
Capital Partners, LLC (the “Agent”), under which the Company may, from time to time, sell shares of the Company’s common
stock, par value $0.001 per share, having an aggregate offering price of up to $20,000,000 (“Shares”) in “at the market
offerings” through or to the Agent, as sales agent and/or principal. Sales can be made by any method deemed an “at-the-market
offering” as defined in Rule 415(a)(4) under the Securities Act of 1933, as amended (the “Securities Act”), or through
privately negotiated transactions. Sales of the Shares, if any, will be made at prevailing market prices at the time of sale, or as otherwise
agreed with the Agent.
The
Company is not obligated to sell, and the Agent is not obligated to sell or offer to sell, any Shares under the Sales Agreement. No assurance
can be given that the Company will sell any Shares under the Sales Agreement, or, if it does, as to the price or amount of Shares that
it sells or the dates when such sales will take place. Each time the Company wishes to issue and sell the Shares under the Sales Agreement,
the Company will provide the Agent with a placement notice describing the number or dollar value of Shares, the time period during which
sales are requested to be made, any limitation on the number of Shares that may be sold in any one day and any minimum price below which
sales may not be made. We or the Agent may suspend the offering of Shares pursuant to a placement notice upon notice and subject to other
conditions. Subject to the terms and conditions of the Sales Agreement, the Agent will use commercially reasonable efforts, consistent
with its normal trading and sales practices, and applicable state and federal laws, rules and regulations and the rules of the Nasdaq
to sell the Shares under the terms and subject to the conditions of the placement notice.
The
Agent will receive a commission from the Company of up to 3.0% of the gross proceeds of any Shares sold under the Sales Agreement.
We have agreed to reimburse the Agent for its reasonable and documented out-of-pocket expenses (including but not limited to the reasonable
and documented fees and expenses of its legal counsel) in an amount not to exceed $75,000, in connection with entering into
the Sales Agreement and for the Agent’s reasonable and documented out-of-pocket expenses related to quarterly maintenance of the
Sales Agreement (including but not limited to the reasonable and documented fees and expenses of its legal counsel) on a quarterly basis
in an amount not to exceed $7,500.
Pursuant
to the terms of the Sales Agreement, the Company agreed to indemnify the Agent against certain liabilities, including under the Securities
Act or the Securities Exchange Act of 1934, as amended, or to contribute to payments that the Agent may be required to make because of
such liabilities.
The
Shares will be issued pursuant to the Company’s shelf registration statement on Form S-3 (File No. 333- 293080), including a base
prospectus contained therein, filed with the Securities and Exchange Commission on January 30, 2026, and declared effective on February
6, 2026.
The
Sales Agreement contains customary representations and warranties, agreements and obligations, conditions to closing and termination
provisions. The foregoing descriptions of terms and conditions of the Sales Agreement do not purport to be complete and are qualified
in their entirety by the full text of the form of the Sales Agreement, a copy of which is attached hereto as Exhibit 1.1.
The
legal opinion and consent of Greenberg Traurig P.A. relating to the validity of the Shares that may be sold pursuant to the Sales Agreement
is filed herewith as Exhibit 5.1.
This
Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy the securities described herein,
nor shall there be any offer, solicitation, or sale of the securities in any state in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws of any such state.
Item 9.01
Financial Statements and Exhibits.
(d)
Exhibits
Exhibit
No.
Description
1.1
Sales Agreement by and between Odysight.ai Inc. and Roth Capital Partners, LLC dated June 5, 2026
5.1
Opinion of Greenberg Traurig P.A.
23.1
Consent of Greenberg Traurig P.A. (contained in Exhibit 5.1)
104
Cover
Page Interactive Data File (embedded within the Inline XBRL document)
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.
ODYSIGHT.AI
INC.
Date:
June 5, 2026
By:
/s/
Einav Brenner
Name:
Einav
Brenner
Title:
Chief
Financial Officer
EX-1.1
EX-1.1
Filename: ex1-1.htm · Sequence: 2
Exhibit
1.1
ODYSIGHT.AI
INC.
Common
Stock
($0.001
par value per share)
Sales
Agreement
June
5, 2026
Roth
Capital Partners, LLC
888
San Clemente Drive, Suite 400
Newport
Beach, CA 92660
Ladies
and Gentlemen:
Odysight.ai
Inc., a Nevada corporation (the “Company”), confirms its agreement (this “Agreement”) with Roth Capital Partners,
LLC (the “Agent”), as follows:
1.
Issuance and Sale of Shares.
The
Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein,
it may issue and sell through or to the Agent, as sales agent and/or principal, shares (the “Placement Shares”) of common
stock of the Company, $0.001 par value per share (the “Common Stock”), provided, however, that in no event shall the Company
issue or sell through Agent such number of Placement Shares that (a) exceeds the number or dollar amount of shares of Common Stock that
may be sold pursuant to the Registration Statement (as defined below), (b) exceeds the number of authorized but unissued shares of Common
Stock of the Company, or (c) exceeds the number or dollar amount of shares of Common Stock that would cause the Company or the offering
of the Placement Shares to not satisfy the eligibility and transaction requirements for use of Form S-3, including, if applicable, General
Instruction I.B.6 of Registration Statement on Form S-3 (the lesser of (a), (b) and (c), the “Maximum Amount”). Notwithstanding
anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1
on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that Agent
shall have no obligation in connection with such compliance. The issuance and sale of Placement Shares through or to the Agent will be
effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and
Exchange Commission (the “Commission”), although nothing in this Agreement shall be construed as requiring the Company to
use the Registration Statement to issue any Placement Shares.
The
Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations thereunder
(the “Securities Act”), with the Commission a registration statement on Form S-3 (File No. 333-293080), including a base
prospectus, relating to certain securities to be issued from time to time by the Company, and which incorporates by reference documents
that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder (the “Exchange Act”). The Company will prepare a prospectus supplement specifically relating
to the Placement Shares (the “Prospectus Supplement”) to the base prospectus included as part of such registration statement.
The Company will furnish to the Agent, for use by the Agent, copies of the base prospectus included as part of such registration statement,
as supplemented by the Prospectus Supplement, relating to the Placement Shares. Except where the context otherwise requires, such registration
statement, and any post-effective amendment thereto, including all documents filed as part thereof or incorporated by reference therein,
and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b)
under the Securities Act or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act, or any subsequent
registration statement on Form S-3 filed pursuant to Rule 415(a)(6) under the Securities Act by the Company to cover any Placement Shares,
is herein called the “Registration Statement.”
The
base prospectus, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented
by the Prospectus Supplement, in the form in which such prospectus and/or Prospectus Supplement have most recently been filed by the
Company with the Commission pursuant to Rule 424(b) under the Securities Act is herein called the “Prospectus.” Any reference
herein to the Registration Statement, the Prospectus or any amendment or supplement thereto, shall be deemed to refer to and include
the documents incorporated or deemed to be incorporated by reference therein, and any reference herein to the terms “amend,”
“amendment” or “supplement” with respect to the Registration Statement or the Prospectus shall be deemed to refer
to and include the filing after the execution hereof of any document with the Commission deemed to be incorporated by reference therein
(the “Incorporated Documents”). For purposes of this Agreement, all references to the Registration Statement, the Prospectus
or to any amendment or supplement thereto shall be deemed to include any copy filed with the Commission pursuant to its Electronic Data
Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system when used by the Commission
(collectively, “EDGAR”).
2.
Placements.
Each
time that the Company wishes to issue and sell Placement Shares hereunder (each, a “Placement”), it will notify the Agent
by email notice (or other method mutually agreed to in writing by the Parties) of the number or dollar value of Placement Shares, the
time period during which sales are requested to be made, any limitation on the number of Placement Shares that may be sold in any one
day and any minimum price below which sales may not be made (a “Placement Notice”), the form of which is attached hereto
as Schedule 1. The Placement Notice shall originate from any of the individuals from the Company set forth on Schedule 3 (with a copy
to each of the other individuals from the Company listed on such schedule), and shall be addressed to each of the individuals from the
Agent set forth on Schedule 3, as such Schedule 3 may be amended from time to time. The Placement Notice shall be effective immediately
upon receipt by the Agent unless and until (i) the Agent declines to accept (in writing and promptly following receipt of any Placement
Notice) the terms contained therein for any reason, in its sole discretion, (ii) the entire amount of the Placement Shares thereunder
has been sold, (iii) the Company suspends or terminates the Placement Notice (which suspension and termination rights may be exercised
by the Company in its sole discretion), or (iv) the Agreement has been terminated under the provisions of Section 12. The amount of any
discount, commission or other compensation to be paid by the Company to the Agent in connection with the sale of the Placement Shares
shall be calculated in accordance with the terms set forth in Schedule 2. It is expressly acknowledged and agreed that neither the Company
nor the Agent will have any obligation whatsoever with respect to a Placement or any Placement Shares unless and until the Company delivers
a Placement Notice to the Agent and the Agent does not decline such Placement Notice pursuant to the terms set forth above, and then
only upon the terms specified therein and herein. In the event of a conflict between the terms of this Agreement and the terms of a Placement
Notice, the terms of the Placement Notice will control.
2
3.
Sale of Placement Shares by Agent.
Subject
to the provisions of Section 5(a), the Agent, for the period specified in the Placement Notice, will use its commercially reasonable
efforts consistent with its normal trading and sales practices and applicable state and federal laws, rules and regulations and the rules
of the Nasdaq Capital Market (the “Exchange”), to sell the Placement Shares up to the amount specified in, and otherwise
in accordance with the terms of, such Placement Notice. The Agent will provide written confirmation to the Company no later than the
opening of the Trading Day (as defined below) immediately following the Trading Day on which it has made any sales of Placement Shares
hereunder setting forth the number of Placement Shares sold on such day, the compensation payable by the Company to the Agent pursuant
to Section 2 with respect to such sales, and the Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions
made by the Agent (as set forth in Section 5(b)) from the gross proceeds that it receives from such sales. Subject to the terms of the
Placement Notice, the Agent may sell Placement Shares by any method permitted by law deemed to be an “at the market offering”
as defined in Rule 415 of the Securities Act.
4.
Suspension of Sales.
(a) The
Company or the Agent may, upon notice to the other party in writing (including by email correspondence
to each of the individuals of the other party set forth on Schedule 3, if receipt of such
correspondence is actually acknowledged by any of the individuals to whom the notice is sent,
other than via auto-reply) or by telephone (confirmed immediately by verifiable email correspondence
to each of the individuals of the other party set forth on Schedule 3), suspend any sale
of Placement Shares (a “Suspension”); provided, however, that such suspension
shall not affect or impair any party’s obligations with respect to any Placement Shares
sold hereunder prior to the receipt of such notice. While a Suspension is in effect, any
obligation under Sections 7(l), 7(m), and 7(n) with respect to the delivery of certificates,
opinions, or comfort letters to the Agent, shall be waived. Each party agrees that no such
notice under this Section 4 shall be effective against any other party unless it is made
to one of the individuals named on Schedule 3 hereto, as such Schedule may be amended from
time to time.
(b) Notwithstanding
any other provision of this Agreement, during any period in which the Company is in possession
of material non-public information, the Company and the Agent agree that (i) no sale of Placement
Shares will take place, (ii) the Company shall not request the sale of any Placement Shares,
and (iii) the Agent shall not be obligated to sell or offer to sell any Placement Shares.
3
5.
Sale and Delivery to the Agent; Settlement.
(a) Sale
of Placement Shares. On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, upon the Agent’s acceptance
of the terms of a Placement Notice, and unless the sale of the Placement Shares described
therein has been declined, suspended, or otherwise terminated in accordance with the terms
of this Agreement, the Agent, for the period specified in the Placement Notice, will use
its commercially reasonable efforts consistent with its normal trading and sales practices,
and in accordance with applicable state and federal laws, rules and regulations and the rules
of the Exchange, to sell such Placement Shares up to the amount specified in such Placement
Notice, and otherwise in accordance with the terms of such Placement Notice. The Company
acknowledges and agrees that (i) there can be no assurance that the Agent will be successful
in selling Placement Shares, (ii) the Agent will incur no liability or obligation to the
Company or any other person or entity if it does not sell Placement Shares for any reason
other than a failure by the Agent to use its commercially reasonable efforts consistent with
its normal trading and sales practices and applicable state and federal laws, rules and regulations
and the rules of the Exchange to sell such Placement Shares as required under this Agreement
and (iii) the Agent shall be under no obligation to purchase Placement Shares on a principal
basis pursuant to this Agreement, except as otherwise agreed by the Agent and the Company.
(b) Settlement
of Placement Shares. Unless otherwise specified in the applicable Placement Notice, settlement
for sales of Placement Shares will occur on the first (1st) Trading Day (or such earlier
day as is industry practice for regular-way trading) following the date on which such sales
are made (each, a “Settlement Date”). The Agent shall notify the Company in writing
(email being sufficient) of each sale of Placement Shares no later than the opening day following
the Trading Day that the Agent sold Placement Shares. The amount of proceeds to be delivered
to the Company on a Settlement Date against receipt of the Placement Shares sold (the “Net
Proceeds”) will be equal to the aggregate sales price received by the Agent, after
deduction of (i) the Agent’s commission or other compensation for such sales payable
by the Company pursuant to Schedule 2 hereto, and (ii) any transaction fees imposed by any
governmental or self-regulatory organization in respect of such sales.
4
(c) Delivery
of Placement Shares. On or before each Settlement Date, the Company will, or will cause
its transfer agent to, electronically transfer the Placement Shares being sold by crediting
the Agent’s or its designee’s account (provided the Agent shall have given the
Company written notice of such designee and such designee’s account information at
least one Trading Day prior to the Settlement Date) at The Depository Trust Company through
its Deposit and Withdrawal at Custodian System or by such other means of delivery as may
be mutually agreed upon by the parties hereto which in all cases shall be freely tradable,
transferable, registered shares in good deliverable form. On each Settlement Date, the Agent
will deliver the related Net Proceeds in same day funds delivered to an account designated
by the Company. The Company agrees that if the Company, or its transfer agent (if applicable),
defaults in its obligation to deliver Placement Shares on a Settlement Date through no fault
of the Agent, then in addition to and in no way limiting the rights and obligations set forth
in Section 10(a) hereto, it will (i) hold the Agent harmless against any loss, claim, damage,
or reasonable, documented expense (including reasonable and documented legal fees and expenses),
as incurred, arising out of or in connection with such default by the Company or its transfer
agent (if applicable) and (ii) pay to the Agent (without duplication) any commission, discount,
or other compensation to which it would otherwise have been entitled absent such default.
(d) Limitations
on Offering Size. Under no circumstances shall the Company cause or request the offer
or sale of any Placement Shares if, after giving effect to the sale of such Placement Shares,
the aggregate number of Placement Shares sold pursuant to this Agreement would exceed the
lesser of (A) together with all sales of Placement Shares under this Agreement, the Maximum
Amount, (B) the amount available for offer and sale under the currently effective Registration
Statement and (C) the amount authorized from time to time to be issued and sold under this
Agreement by the Company’s board of directors, a duly authorized committee thereof
or a duly authorized executive committee, and notified to the Agent in writing. Under no
circumstances shall the Company cause or request the offer or sale of any Placement Shares
pursuant to this Agreement at a price lower than the minimum price authorized from time to
time by the Company’s board of directors, duly authorized committee thereof or a duly
authorized executive committee, and notified to the Agent in writing.
5
6.
Representations and Warranties of the Company.
Except
as disclosed in the Registration Statement or Prospectus (including the Incorporated Documents), the Company represents and warrants
to, and agrees with the Agent that as of the date of this Agreement and as of each Applicable Time (as defined below), unless such representation,
warranty or agreement specifies a different date or time:
(a) Registration
Statement and Prospectus. The Company and the transactions contemplated by this Agreement
meet the requirements for and comply with the conditions for the use of Form S-3 under the
Securities Act. The Registration Statement has been filed with the Commission and declared
effective under the Securities Act. The Prospectus Supplement will name the Agent as the
agent in the section entitled “Plan of Distribution.” The Company has not received,
and has no notice of, any order of the Commission preventing or suspending the use of the
Registration Statement, or threatening or instituting proceedings for that purpose. The Registration
Statement and the offer and sale of Placement Shares as contemplated hereby meet the requirements
of Rule 415 under the Securities Act and comply in all material respects with said Rule.
Any statutes, regulations, contracts or other documents that are required to be described
in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration
Statement have been so described or filed. Copies of the Registration Statement, the Prospectus,
and any such amendments or supplements and all documents incorporated by reference therein
that were filed with the Commission on or prior to the date of this Agreement have been delivered,
or are available through EDGAR, to the Agent and its counsel. The Company has not distributed
and, prior to the later to occur of each Settlement Date and completion of the distribution
of the Placement Shares, will not distribute any offering material in connection with the
offering or sale of the Placement Shares other than the Registration Statement and the Prospectus
and any Issuer Free Writing Prospectus to which Agent has consented, which consent will not
be unreasonably withheld, delayed or conditioned, or that is required by applicable law or
the listing maintenance requirements of the Exchange. The Company has not, in the 12 months
preceding the date hereof, received notice from the Exchange to the effect that the Company
is not in compliance with the listing or maintenance requirements. To the Company’s
knowledge, it is in compliance with all such listing and maintenance requirements.
(b) No
Misstatement or Omission. The Registration Statement, when it became or becomes effective,
and the Prospectus, and any amendment or supplement thereto, on the date of such Prospectus
or amendment or supplement, conformed and will conform in all material respects with the
requirements of the Securities Act. At each Settlement Date, the Registration Statement and
the Prospectus, as of such date, will conform in all material respects with the requirements
of the Securities Act. The Registration Statement, when it became or becomes effective, did
not, and will not, contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein not misleading.
The Prospectus and any amendment or supplement thereto, on the date thereof and at each Applicable
Time, did not and will not include an untrue statement of a material fact or omit to state
a material fact necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. The Incorporated Documents did not, and any further
documents filed and incorporated by reference therein will not, when filed with the Commission,
contain an untrue statement of a material fact or omit to state a material fact required
to be stated in such document or necessary to make the statements in such document, in light
of the circumstances under which they were made, not misleading. The foregoing shall not
apply to statements in, or omissions from, any such document made in reliance upon, and in
conformity with, information furnished to the Company by Agent specifically for use in the
preparation thereof.
6
(c) Conformity
with Securities Act and Exchange Act. The Registration Statement, the Prospectus, any
Issuer Free Writing Prospectus or any amendment or supplement thereto, and the Incorporated
Documents, when such documents were or are filed with the Commission under the Securities
Act or the Exchange Act or became or become effective under the Securities Act, as the case
may be, conformed and will conform in all material respects with the requirements of the
Securities Act and the Exchange Act, as applicable.
(d) Financial
Information. The consolidated financial statements of the Company (including the related
notes and schedules) included or incorporated by reference in the Registration Statement
and the Prospectus have been prepared in compliance with the applicable requirements of the
Securities Act and the Exchange Act as in effect at the time of filing or as amended or corrected
in a subsequent filing and present fairly, in all material respects, the financial position
of the Company as of the dates indicated and the results of its operations and the changes
in its cash flows for the periods specified; such financial statements have been prepared
in conformity with generally accepted accounting principles in the United States (“GAAP”),
except as may be otherwise specified in such financial statements or the notes thereto and
except that unaudited financial statements may not contain all footnotes required by GAAP,
and fairly present in all material respects the financial position of the Company and its
consolidated Subsidiaries as of and for the dates thereof and the results of operations and
cash flows for the periods then ended, subject, in the case of unaudited statements, to normal,
immaterial, year-end audit adjustments.
(e) Conformity
with EDGAR Filing. The Prospectus delivered to the Agent for use in connection with the
sale of the Placement Shares pursuant to this Agreement will be identical to the versions
of the Prospectus created to be transmitted to the Commission for filing via EDGAR, except
to the extent permitted by Regulation S-T.
7
(f) Organization.
The Company is duly organized, validly existing as a corporation and in good standing
under the laws of the State of Nevada. The Company is duly licensed or qualified as a foreign
corporation for transaction of business and in good standing under the laws of each other
jurisdiction in which its ownership or lease of property or the conduct of its business requires
such license or qualification, and has all corporate power and authority necessary to own
or hold its properties and to conduct its business as described in the Registration Statement
and the Prospectus, except where the failure to be so qualified or in good standing or have
such power or authority would not, individually or in the aggregate, reasonably be expected
to have a material adverse effect on the assets, business, operations, earnings, properties,
condition (financial or otherwise), prospects, stockholders’ equity or results of operations
of the Company or prevent the consummation of the transactions contemplated hereby (a “Material
Adverse Effect”).
(g) Subsidiaries.
All of the direct and indirect subsidiaries (individually, a “Subsidiary”)
of the Company are set forth on Exhibit 21.1 to the Company’s most recent Annual Report
on Form 10-K filed with the Commission. The Company owns, directly or indirectly, all of
the capital stock or other equity interests of each Subsidiary free and clear of any “Liens”
(which for purposes of this Agreement shall mean a lien, charge, security interest, encumbrance,
right of first refusal, preemptive right or other restriction), and all of the issued and
outstanding shares of capital stock of each Subsidiary are validly issued and are fully paid,
non-assessable and free of preemptive and similar rights to subscribe for or purchase securities.
(h) No
Violation or Default. The Company is not (i) in violation of its charter or by-laws
or similar organizational documents; (ii) in default, and no event has occurred that, with
notice or lapse of time or both, would constitute such a default, in the due performance
or observance of any term, covenant or condition contained in any indenture, mortgage, deed
of trust, loan agreement or other similar agreement or instrument to which the Company is
a party or by which the Company is bound or to which any of the property or assets of the
Company is subject; or (iii) in violation of any law or statute or any judgment, order, rule
or regulation of any court or arbitrator or governmental or regulatory authority, except,
in the case of each of clauses (ii) and (iii) above, for any such violation or default that
would not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect. To the Company’s knowledge, no other party under any material contract or other
agreement to which it is a party is in default in any respect thereunder where such default
would reasonably be expected to have a Material Adverse Effect.
(i) No
Material Adverse Effect. Since the date of the most recent financial statements of the
Company included or incorporated by reference in the Registration Statement and the Prospectus,
except as specifically disclosed in a subsequent filing filed prior to the date on which
this representation is being made, there has not been (i) any Material Adverse Effect, (ii)
any transaction which is material to the Company, (iii) any obligation or liability, direct
or contingent (including any off-balance sheet obligations), incurred by the Company which
is material to the Company, (iv) any material change in the capital stock or outstanding
long-term indebtedness (other than (A) the grant of additional awards under equity incentive
plans, (B) changes in the number of outstanding Common Stock due to the issuance of shares
upon exercise or conversion of securities exercisable for or convertible into Common Stock
described in the Registration Statement or Prospectus, (C) any repurchase of capital stock
of the Company, (D) as a result of the sale of Placement Shares, or (E) other than as publicly
reported or announced), or (v) any dividend or distribution of any kind declared, paid or
made on the capital stock of the Company other than in each case above in the ordinary course
of business or as otherwise disclosed in the Registration Statement or Prospectus (including
any document deemed incorporated by reference therein).
8
(j) Capitalization.
The issued and outstanding shares of capital stock of the Company have been validly issued,
are fully paid and non-assessable and, other than as disclosed in the Registration Statement
or the Prospectus, are not subject to any preemptive rights, rights of first refusal or similar
rights. The Company has an authorized, issued and outstanding capitalization as set forth
in the Registration Statement and the Prospectus as of the dates referred to therein (other
than (i) the grant of additional awards under the Company’s stock option plans, (ii)
changes in the number of outstanding shares of Common Stock of the Company due to the issuance
of shares upon the exercise or conversion of securities exercisable for, or convertible into,
Common Stock , (iii) as a result of the issuance of Placement Shares, (iv) any repurchases
of capital stock of the Company, or (v) as publicly announced or reported) and such authorized
capital stock conforms in all material respects to the description thereof set forth in the
Registration Statement and the Prospectus. The description of the securities of the Company
in the Registration Statement and the Prospectus is complete and accurate in all material
respects. The Company does not have outstanding any options to purchase, or any rights or
warrants to subscribe for, or any securities or obligations convertible into, or exchangeable
for, or any contracts or commitments to issue or sell, any shares of capital stock or other
securities, except as described in the Registration Statement and the Prospectus.
(k) Authorization;
Enforceability. The Company has full legal right, power and authority to enter into this
Agreement and perform the transactions contemplated hereby. This Agreement has been duly
authorized, executed and delivered by the Company and, assuming the due authorization, execution
and delivery of the Agreement by the Agent, is a legal, valid and binding agreement of the
Company enforceable against the Company in accordance with its terms, except (i) to the extent
that enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting creditors’ rights generally and by general equitable principles
and (ii) the indemnification and contribution provisions of Section 10 hereof may be limited
by federal or state securities laws and public policy considered in respect thereof.
9
(l) Authorization
of Placement Shares. The Placement Shares, when issued and delivered pursuant to the
terms approved by the board of directors of the Company or a duly authorized committee thereof,
against payment therefor as provided herein, will be duly and validly authorized and issued
and fully paid and non-assessable, free and clear of any pledge, lien, encumbrance, security
interest or other claim (other than any pledge, lien, encumbrance, security interest or other
claim arising from an act or omission of the Agent or a purchaser), including any statutory
or contractual preemptive rights, resale rights, rights of first refusal or other similar
rights, and will be registered pursuant to Section 12 of the Exchange Act. The Placement
Shares, when issued, will conform in all material respects to the description thereof set
forth in or incorporated into the Prospectus.
(m) No
Consents Required. No consent, approval, authorization, order, registration or qualification
of or with any court with jurisdiction over the Company is required for the execution, delivery
and performance by the Company of this Agreement, the issuance and sale by the Company of
the Placement Shares, except for such consents, approvals, authorizations, orders and registrations
or qualifications (i) as may be required under applicable state securities laws or by the
by-laws and rules of the Financial Industry Regulatory Authority (“FINRA”) or
the Exchange (including any notices that may be required by the Exchange) in connection with
the sale of the Placement Shares by the Agent, (ii) as may be required under the Securities
Act or (iii) as have been previously obtained by the Company.
(n) No
Preferential Rights. (i) No person, as such term is defined in Rule 1-02 of Regulation
S-X promulgated under the Securities Act (each, a “Person”), has the right, contractual
or otherwise, to cause the Company to issue or sell to such Person any Common Stock or shares
of any other capital stock or other securities of the Company (other than upon the exercise
of options or warrants to purchase Common Stock or upon the exercise of options that may
be granted from time to time under the Company’s stock option plan), (ii) no Person
has any preemptive rights, rights of first refusal, or any other rights (whether pursuant
to a “poison pill” provision or otherwise) to purchase any Common Stock or shares
of any other capital stock or other securities of the Company from the Company which have
not been duly waived with respect to the offering contemplated hereby, (iii) no Person has
the right to act as an underwriter or as a financial advisor to the Company in connection
with the offer and sale of the Placement Shares, and (iv) no Person has the right, contractual
or otherwise, to require the Company to register under the Securities Act any Common Stock
or shares of any other capital stock or other securities of the Company, or to include any
such shares or other securities in the Registration Statement or the offering contemplated
thereby, whether as a result of the filing or effectiveness of the Registration Statement
or the sale of the Placement Shares as contemplated thereby or otherwise, except in each
case for such rights as have been waived on or prior to the date hereof.
10
(o) Independent
Public Accountant. Brightman Almagor Zohar & Co., a firm in the Deloitte global network
(the “Accountant”), whose report on the consolidated financial statements of
the Company is filed with the Commission as part of the Company’s most recent Annual
Report on Form 10-K filed with the Commission and incorporated into the Registration Statement
and the Prospectus, are and, during the periods covered by their report, were independent
public accountants within the meaning of the Securities Act and the Public Company Accounting
Oversight Board (United States). To the Company’s knowledge, the Accountant is not
in violation of the auditor independence requirements of the Sarbanes-Oxley Act of 2002 (the
“Sarbanes-Oxley Act”) with respect to the Company.
(p) Enforceability
of Agreements. All agreements between the Company and third parties filed as exhibits
into the Registration Statement, other than such agreements that have expired by their terms
or whose termination is disclosed in documents filed by the Company on EDGAR, are, assuming
the due authorization, execution and delivery of such agreements by the respective counterparties,
legal, valid and binding obligations of the Company, and, to the Company’s knowledge,
enforceable in accordance with their respective terms, except to the extent that (i) enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors’ rights generally and by general equitable principles and (ii) the indemnification
provisions of certain agreements may be limited by federal or state securities laws or public
policy considerations in respect thereof, and except for any unenforceability that, individually
or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.
(q) No
Litigation. Except as set forth in the Registration Statement or the Prospectus, there
are no legal, governmental or regulatory actions, suits or proceedings pending, nor, to the
Company’s knowledge, any legal, governmental or regulatory investigations, to which
the Company is a party or to which any property of the Company is the subject that, individually
or in the aggregate, if determined adversely to the Company would reasonably be expected
to have a Material Adverse Effect or materially and adversely affect the ability of the Company
to perform its obligations under this Agreement; to the Company’s knowledge, no such
actions, suits or proceedings are threatened or contemplated by any governmental or regulatory
authority or threatened by others; and (i) there are no current or pending legal, governmental
or regulatory investigations, actions, suits or proceedings which are known to the Company
and that are required under the Securities Act to be described in the Prospectus that are
not so described; and (ii) there are no contracts or other documents that are required under
the Securities Act to be filed as exhibits to the Registration Statement that are not so
filed.
(r) Licenses
and Permits. The Company possesses or has obtained, all licenses, certificates, consents,
orders, approvals, permits and other authorizations issued by, and have made all declarations
and filings with, the appropriate federal, state, local or foreign governmental or regulatory
authorities that are necessary for the ownership or lease of their respective properties
or the conduct of their respective businesses as currently conducted, as described in the
Registration Statement and the Prospectus (the “Permits”), except where the failure
to possess, obtain or make the same would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect. The Company has not received written notice
of any proceeding relating to revocation or modification of any such Permit or has any reason
to believe that such Permit will not be renewed in the ordinary course, except where the
failure to obtain any such renewal would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
11
(s) [Reserved]
(t) No
Material Defaults. The Company has not defaulted on any installment on indebtedness for
borrowed money or on any rental on one or more long-term leases, which defaults, individually
or in the aggregate, could reasonably be expected to have a Material Adverse Effect. The
Company has not filed a report pursuant to Section 13(a) or 15(d) of the Exchange Act since
the filing of its last Annual Report on Form 10-K, indicating that it (i) has failed to pay
any dividend or sinking fund installment on preferred stock or (ii) has defaulted on any
installment on indebtedness for borrowed money or on any rental on one or more long-term
leases, which defaults, individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect.
(u) S-3
Eligibility. At the time the Registration Statement was or will be declared effective,
and at the time the Company’s most recent Annual Report on Form 10-K was filed with
the Commission, the Company met or will meet the applicable requirements for the use of Form
S-3 under the Securities Act, including, but not limited to, General Instruction I.B.6 of
Form S-3, if applicable, with respect to the aggregate market value of securities being sold
pursuant to this offering. As of the close of trading on the Exchange on April 9, 2026,
the aggregate market value of the outstanding voting and non-voting common equity (as defined
in Rule 405) of the Company held by persons other than affiliates of the Company (pursuant
to Rule 144 of the Securities Act, those that directly, or indirectly through one or more
intermediaries, control, or are controlled by, or are under common control with, the Company)
(the “Non-Affiliate Shares”), was approximately $63.5 million (calculated
by multiplying (x) the price at which the common equity of the Company was last sold on the
Exchange on April 9, 2026 times (y) the number of Non-Affiliate Shares). The Company
is not a shell company (as defined in Rule 405 under the Securities Act) and has not been
a shell company for at least 12 calendar months previously and if it has been a shell company
at any time previously, has filed current Form 10 information (as defined in General Instruction
I.B.6 of Form S-3) with the Commission at least 12 calendar months previously reflecting
its status as an entity that is not a shell company.
12
(v) Certain
Market Activities. Neither the Company nor, to the Company’s knowledge, any of
its directors, officers or controlling persons has taken, directly or indirectly, any action
designed, or that has constituted or would reasonably be expected to cause or result in,
under the Exchange Act or otherwise, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Placement Shares.
(w) Tax
Matters. Except for matters that would not, individually or in the aggregate, reasonably
be expected to result in a Material Adverse Effect, the Company has filed all necessary federal,
state, local and foreign income and franchise tax returns and has paid all taxes required
to be paid by any of them and, if due and payable, any related or similar assessment, fine
or penalty levied against any of them, except as may be being contested in good faith and
by appropriate proceedings. Except for matters that would not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect, the Company has made adequate
charges, accruals and reserves in the applicable financial statements referred to in the
Registration Statement and the Prospectus in respect of all federal, state, local and foreign
income and franchise taxes for all periods as to which the tax liability of the Company has
not been finally determined.
(x) Title.
The Company has good and marketable title in fee simple to all real property and good
and valid title to all personal property owned by it which is material to the business of
the Company, in each case free and clear of all liens, encumbrances and defects except such
as are described in the Registration Statement and the Prospectus or such as do not materially
affect the value of such property and do not interfere with the use made and proposed to
be made of such property by the Company or as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. Any real property leased by the
Company is held by it under valid, existing and enforceable leases with such exceptions as
are not material or materially interfere with the use made and proposed to be made of such
property by the Company.
(y) Insurance.
The Company carries, or is covered by, insurance in such amounts and covering such risks
as the Company reasonably believes is adequate for the conduct of its business and as is
customary for companies in similar size as the Company and which are engaged in similar businesses
in similar industries.
(z) Intellectual
Property. The Company owns or possesses adequate enforceable rights to use all patents,
patent applications, trademarks (both registered and unregistered), service marks, trade
names, trademark registrations, service mark registrations, copyrights, licenses and know-how
(including trade secrets and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures) (collectively, the “Intellectual Property”),
necessary for the conduct of its business as conducted as of the date hereof, except to the
extent that the failure to own or possess adequate rights to use such Intellectual Property
would not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect; the Company has not received any written notice of any claim of infringement or conflict
which asserted Intellectual Property rights of others, which infringement or conflict, if
the subject of an unfavorable decision, would reasonably be expected to result in a Material
Adverse Effect; there are no pending, or to the Company’s knowledge, threatened judicial
proceedings or interference proceedings against the Company challenging the Company’s
rights in or to or the validity of the scope of any of the Company’s patents, patent
applications or proprietary information.
13
(aa) Environmental
Laws. The Company (i) is in compliance with any and all applicable foreign, federal,
state and local laws and regulations relating to the protection of human health and safety,
the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental
Laws”), (ii) has received and is in compliance with all permits, licenses or other
approvals required of it under applicable Environmental Laws to conduct its business as currently
conducted and (iii) has not received notice of any actual or potential liability for the
investigation or remediation of any disposal or release of hazardous or toxic substances
or wastes, pollutants or contaminants, except where such non-compliance with Environmental
Laws, failure to receive required permits, licenses or other approvals, or liability would
not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
(bb) Disclosure
Controls. The Company maintains disclosure controls and procedures (as such term is defined
in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange
Act; such disclosure controls and procedures have been designed to ensure that material information
relating to the Company is made known to the Company’s principal executive officer
and principal financial officer by others within those entities. The Company maintains internal
control over financial reporting (as such term is defined in Rule 13a-15(f) of the Exchange
Act) that has been designed by, or under the supervision of, its principal executive and
principal financial officers, or persons performing similar functions, to provide reasonable
assurance regarding the reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with GAAP.
(cc) Sarbanes-Oxley
Compliance. The Company is not aware of any failure on the part of the Company or any
of the Company’s directors or officers, in their capacities as such, to comply with
any applicable provisions of the Sarbanes-Oxley Act and the applicable rules and regulations
promulgated thereunder in all material respects. Each of the principal executive officer
and the principal financial officer of the Company has made all certifications required by
Sections 302 and 906 of the Sarbanes-Oxley Act with respect to all reports, schedules, forms,
statements and other documents required to be filed by it or furnished by it to the Commission
during the past 12 months. For purposes of the preceding sentence, “principal executive
officer” and “principal financial officer” shall have the meanings given
to such terms in the Sarbanes-Oxley Act.
14
(dd) Finder’s
Fees. The Company has not incurred any liability for any finder’s fees, brokerage
commissions or similar payments in connection with the transactions herein contemplated,
except as may otherwise exist with respect to the Agent pursuant to this Agreement.
(ee) Labor
Disputes. No labor disturbance by or dispute with employees of the Company exists or,
to the knowledge of the Company, is threatened which would be reasonably likely to have a
Material Adverse Effect.
(ff) Investment
Company Act. The Company is not, and immediately after receipt of payment for the Placement
Shares from the Agent pursuant to this Agreement, will not be, an “investment company”
or an entity “controlled” by an “investment company,” as such terms
are defined in the Investment Company Act of 1940, as amended (the “Investment Company
Act”).
(gg) Operations.
The operations of the Company 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, the money laundering statutes of all jurisdictions
to which the Company is subject, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or enforced by any governmental
agency (collectively, the “Money Laundering Laws”), except as would not reasonably
be expected to have a Material Adverse Effect; and no action, suit or proceeding by or before
any court or governmental agency, authority or body or any arbitrator involving the Company
with respect to the Money Laundering Laws is pending or, to the knowledge of the Company,
threatened.
(hh) Off-Balance
Sheet Arrangements. There are no transactions, arrangements and other relationships between
and/or among the Company, and/or, to the knowledge of the Company, any of its affiliates
and any unconsolidated entity, including, but not limited to, any structural finance, special
purpose or limited purpose entity (each, an “Off Balance Sheet Transaction”)
that could reasonably be expected to affect materially the Company’s liquidity or the
availability of or requirements for its capital resources, including those Off Balance Sheet
Transactions described in the Commission’s Statement about Management’s Discussion
and Analysis of Financial Conditions and Results of Operations (Release Nos. 33-8056; 34-45321;
FR-61), required to be described in the Prospectus which have not been described as required.
(ii) Underwriter
Agreements. Other than with respect to this Agreement, the Company is not a party to
any agreement with an agent or underwriter for any other “at the market” or continuous
equity transaction.
15
(jj) ERISA.
The Company is in compliance in all material respects with all presently applicable provisions
of the Employee Retirement Income Security Act of 1974, as amended, including the regulations
and published interpretations thereunder (“ERISA”); no “reportable event”
(as defined in ERISA) has occurred with respect to any “pension plan” (as defined
in ERISA) for which the Company would have any liability; the Company has not incurred and
does not expect to incur liability under (i) Title IV of ERISA with respect to termination
of, or withdrawal from, any “pension plan” or (ii) Sections 412 or 4971 of the
Internal Revenue Code of 1986, as amended, including the regulations and published interpretations
thereunder (the “Code”); and each “pension plan” for which the Company
would have any liability that is intended to be qualified under Section 401(a) of the Code
is so qualified in all material respects and nothing has occurred, whether by action or by
failure to act, which would cause the loss of such qualification.
(kk) Forward-Looking
Statements. No forward-looking statement (within the meaning of Section 27A of the Securities
Act and Section 21E of the Exchange Act) (a “Forward Looking Statement”)
contained in the Registration Statement and the Prospectus has been made or reaffirmed without
a reasonable basis or has been disclosed other than in good faith.
(ll) [Reserved]
(mm) Margin
Rules. Neither the issuance, sale and delivery of the Placement Shares nor the application
of the proceeds thereof by the Company as described in the Registration Statement and the
Prospectus will violate Regulation T, U or X of the Board of Governors of the Federal Reserve
System.
16
(nn) No
Improper Practices. (i) Neither the Company, nor to the Company’s knowledge, any
of its executive officers has, in the past five years, made any unlawful contributions to
any candidate for any political office (or failed fully to disclose any contribution in violation
of law) or made any contribution or other payment to any official of, or candidate for, any
federal, state, municipal, or foreign office or other person charged with similar public
or quasi-public duty in violation of any law or of the character required to be disclosed
in the Prospectus; (ii) no relationship, direct or indirect, exists between or among the
Company or, to the Company’s knowledge, any affiliate of the Company, on the one hand,
and the directors, officers and stockholders of the Company, that is required by the Securities
Act to be described in the Registration Statement and the Prospectus that is not so described;
(iii) no relationship, direct or indirect, exists between or among the Company, or any affiliate
of the Company, on the one hand, and the directors, officers, stockholders or directors of
the Company that is required by the rules of FINRA to be described in the Registration Statement
and the Prospectus that is not so described; (iv) there are no material outstanding loans
or advances or material guarantees of indebtedness by the Company to or for the benefit of
any of its officers or directors or any of the members of the families of any of them; (v)
the Company has not offered, or caused any placement agent to offer, Common Stock to any
person with the intent to influence unlawfully (A) a customer or supplier of the Company
to alter the customer’s or supplier’s level or type of business with the Company
or (B) a trade journalist or publication to write or publish favorable information about
the Company or any of its products or services, and, (vi) neither the Company nor, to the
Company’s knowledge, any employee or agent of the Company has made any payment of funds
of the Company or received or retained any funds in violation of any law, rule or regulation
(including, without limitation, the Foreign Corrupt Practices Act of 1977, which payment,
receipt or retention of funds is of a character required to be disclosed in the Registration
Statement or the Prospectus).
(oo) No
Conflicts. Neither the execution of this Agreement, nor the issuance, offering or sale
of the Placement Shares, nor the consummation of any of the transactions contemplated herein,
nor the compliance by the Company with the terms and provisions hereof will conflict with,
or will result in a breach of, any of the terms and provisions of, or has constituted or
will constitute a default under, or has resulted in or will result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the Company pursuant to
the terms of any contract or other agreement to which the Company may be bound or to which
any of the property or assets of the Company is subject, except (i) such conflicts, breaches
or defaults as may have been waived and (ii) such conflicts, breaches and defaults that would
not reasonably be excepted to result in a Material Adverse Effect; nor will such action result
(x) in any violation of the provisions of the organizational or governing documents of the
Company, or (y) in any material violation of the provisions of any statute or any order,
rule or regulation applicable to the Company or of any court or of any federal, state or
other regulatory authority or other government body having jurisdiction over the Company,
except where such violation would not reasonably be expected to have a Material Adverse Effect.
(pp) OFAC.
Neither the Company or any director, officer, agent, employee, affiliate or representative
of the Company is a government, individual or entity (in this paragraph, “Person”)
that is, or is owned or controlled by a Person that is, currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury
(“OFAC”), the United Nations Security Council (“UNSC”), the European
Union (“EU”), His Majesty’s Treasury (“HMT”), or other relevant
sanctions authority (collectively, “Sanctions”), nor located, organized or resident
in a country or territory that is the subject of Sanctions; provided however, that for the
purposes of this paragraph, no person shall be an affiliate of the Company solely by reason
of owning less than a majority of any class of voting securities of the Company. The Company
will not directly or indirectly knowingly use the proceeds of the offering of the Securities
hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary,
joint venture partner or other person or entity, for the purpose of financing the activities
of any person currently subject to any U.S. sanctions administered by OFAC. The Company represents
and covenants that, except as detailed in the Registration Statement or the Prospectus, for
the past 5 years, the Company has not knowingly engaged in, is not now knowingly engaged
in, any dealings or transactions with any Person, or in any country or territory, that at
the time of the dealing or transaction is or was the subject of Sanctions.
17
(qq) Stock
Transfer Taxes. On each Settlement Date, all stock transfer or other taxes (other than
income taxes) which are required to be paid in connection with the sale and transfer of the
Placement Shares to be sold hereunder will be, or will have been, fully paid or provided
for by the Company and all laws imposing such taxes will be or will have been fully complied
with.
(rr) No
Misstatement or Omission in an Issuer Free Writing Prospectus. Each Issuer Free Writing
Prospectus does not contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The foregoing sentence does not apply to statements
in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with
written information furnished to the Company by the Agent specifically for use therein.
(ss) IT
Systems. (i)(x) To the knowledge of Company, there has been no security breach or other
compromise of any Company’s information technology and computer systems, networks,
hardware, software, data (including the data of their respective customers, employees, suppliers,
vendors and any third party data maintained by or on behalf of them), equipment or technology
(collectively, “IT Systems and Data”) and (y) the Company has not been notified
of, and have no knowledge of any event or condition that would reasonably be expected to
result in, any security breach or other compromise to their IT Systems and Data; (ii) the
Company is presently in material compliance with all applicable laws or statutes and all
judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory
authority, internal policies and contractual obligations relating to the privacy and security
of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized
use, access, misappropriation or modification, except as would not, in the case of this clause
(ii), individually or in the aggregate, have a Material Adverse Effect; and (iii) the Company
has implemented backup and disaster recovery technology consistent with industry standards
and practices.
Any
certificate signed by an officer of the Company and delivered to the Agent or to counsel for the Agent pursuant to or in connection with
this Agreement shall be deemed to be a representation and warranty by the Company, as applicable, to the Agent as to the matters set
forth therein.
18
7.
Covenants of the Company.
The
Company covenants and agrees with Agent that:
(a) Registration
Statement Amendments. After the date of this Agreement and during any period in which
a Prospectus relating to any Placement Shares is required to be delivered by Agent under
the Securities Act (including in circumstances where such requirement may be satisfied pursuant
to Rule 172 under the Securities Act) (the “Prospectus Delivery Period”)
(i) the Company will notify the Agent promptly of the time when any subsequent amendment
to the Registration Statement, other than documents incorporated by reference or amendments
not related to any Placement, has been filed with the Commission and/or has become effective
or any subsequent supplement to the Prospectus has been filed and of any request by the Commission
for any amendment or supplement to the Registration Statement or Prospectus related to the
Placement or for additional information related to the Placement, (ii) the Company will prepare
and file with the Commission, promptly upon the Agent’s written request, any amendments
or supplements to the Registration Statement or Prospectus that, upon the advice of the Company’s
legal counsel, may be necessary or advisable in connection with the distribution of the Placement
Shares by the Agent (provided, however, that the failure of the Agent to make such request
shall not relieve the Company of any obligation or liability hereunder, or affect the Agent’s
right to rely on the representations and warranties made by the Company in this Agreement
and provided, further, that the only remedy the Agent shall have with respect to the failure
to make such filing shall be to cease making sales under this Agreement until such amendment
or supplement is filed); (iii) the Company will not file any amendment or supplement to the
Registration Statement or Prospectus relating to the Placement Shares or a security convertible
into the Placement Shares (other than an Incorporated Document) unless a copy thereof has
been submitted to the Agent within a reasonable period of time before the filing and the
Agent has not reasonably objected thereto in writing within two Trading Days of receipt thereof
(provided, however, that (A) the failure of the Agent to make such objection shall not relieve
the Company of any obligation or liability hereunder, or affect the Agent’s right to
rely on the representations and warranties made by the Company in this Agreement and (B)
the Company has no obligation to provide the Agent any advance copy of such filing or to
provide the Agent an opportunity to object to such filing if the filing does not name the
Agent or does not relate to the transaction herein provided; and provided, further, that
the only remedy Agent shall have with respect to the failure to by the Company to obtain
such consent shall be to cease making sales under this Agreement) and the Company will furnish
to the Agent at the time of filing thereof a copy of any document that upon filing is deemed
to be incorporated by reference into the Registration Statement or Prospectus, except for
those documents available via EDGAR; and (iv) the Company will cause each amendment or supplement
to the Prospectus to be filed with the Commission as required pursuant to the applicable
paragraph of Rule 424(b) of the Securities Act or, in the case of any document to be incorporated
therein by reference, to be filed with the Commission as required pursuant to the Exchange
Act, within the time period prescribed (the determination to file or not file any amendment
or supplement with the Commission under this Section 7(a), based on the Company’s reasonable
opinion or reasonable objections, shall be made exclusively by the Company).
19
(b) Notice
of Commission Stop Orders. The Company will advise the Agent, promptly after it receives
notice or obtains knowledge thereof, of the issuance or threatened issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement, of the suspension
of the qualification of the Placement Shares for offering or sale in any jurisdiction, or
of the initiation or threatening of any proceeding for any such purpose; and it will promptly
use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain
its withdrawal if such a stop order should be issued. The Company will advise the Agent promptly
after it receives any request by the Commission for any amendments to the Registration Statement
or any amendment or supplements to the Prospectus or any Issuer Free Writing Prospectus or
for additional information related to the offering of the Placement Shares or for additional
information related to the Registration Statement, the Prospectus or any Issuer Free Writing
Prospectus.
(c) Delivery
of Prospectus; Subsequent Changes. During the Prospectus Delivery Period, the Company
will comply with all requirements imposed upon it by the Securities Act, as from time to
time in force, and to file on or before their respective due dates all reports and any definitive
proxy or information statements required to be filed by the Company with the Commission pursuant
to Sections 13(a), 13(c), 14, 15(d) or any other provision of or under the Exchange Act.
If the Company has omitted any information from the Registration Statement pursuant to Rule
430A under the Securities Act, it will use its commercially reasonable efforts to comply
with the provisions of and make all requisite filings with the Commission pursuant to said
Rule 430A and to notify the Agent promptly of all such filings, provided, however,
that the Company shall not be required to furnish any document to the Agent to the extent
such document is available on EDGAR. If during the Prospectus Delivery Period any event occurs
as a result of which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances then existing, not misleading, or if during the
Prospectus Delivery Period it is necessary to amend or supplement the Registration Statement
or Prospectus to comply with the Securities Act, the Company will promptly notify Agent to
suspend the offering of Placement Shares during such period and the Company will promptly
amend or supplement the Registration Statement or Prospectus (at the expense of the Company)
so as to correct such statement or omission or effect such compliance; provided, however,
that the Company may delay the filing of any amendment or supplement, if in the judgment
of the Company, it is in the best interests of the Company.
(d) Listing
of Placement Shares. During the Prospectus Delivery Period, the Company will use its
commercially reasonable efforts to effect and maintain the listing of the Common Stock (including
the Placement Shares) on the Exchange.
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(e) Delivery
of Registration Statement and Prospectus. The Company will furnish to the Agent and its
counsel (at the reasonable expense of the Company) copies of the Registration Statement,
the Prospectus (including all documents incorporated by reference therein) and all amendments
and supplements to the Registration Statement or Prospectus that are filed with the Commission
during the Prospectus Delivery Period, in each case as soon as reasonably practicable and
in such quantities as the Agent may from time to time reasonably request; provided, however,
that the Company shall not be required to furnish any document (other than the Prospectus)
to the Agent to the extent such document is available on EDGAR.
(f) Earnings
Statement. The Company will make generally available to its security holders as soon
as practicable, but in any event not later than 15 months after the end of the Company’s
current fiscal quarter, an earnings statement covering a 12-month period that satisfies the
provisions of Section 11(a) and Rule 158 of the Securities Act, provided, however,
that the Company will be deemed to have furnished such statement to its security holders
to the extent they are filed on EDGAR.
(g) Use
of Proceeds. The Company will use the Net Proceeds as described in the Prospectus in
the section entitled “Use of Proceeds.”
(h) Notice
of Other Sales. Without the prior written consent of the Agent, the Company will not,
directly or indirectly, offer to sell, sell, contract to sell, grant any option to sell or
otherwise dispose of any Common Stock (other than the Placement Shares offered pursuant to
this Agreement) or securities convertible into or exchangeable for Common Stock, warrants
or any rights to purchase or acquire Common Stock during the period beginning on the date
on which any Placement Notice is delivered to the Agent hereunder and ending immediately
following the final Settlement Date with respect to Placement Shares sold pursuant to such
Placement Notice (or, if the Placement Notice has been terminated or suspended prior to the
sale of all Placement Shares covered by a Placement Notice, the date of such termination
or suspension); and will not directly or indirectly in any other “at the market”
or continuous equity transaction offer to sell, sell, contract to sell, grant any option
to sell or otherwise dispose of any Common Stock (other than the Placement Shares offered
pursuant to this Agreement) or securities convertible into or exchangeable for Common Stock,
warrants or any rights to purchase or acquire, Common Stock prior to the termination of this
Agreement (other than Common Stock or securities convertible into or exchangeable for Common
Stock, warrants or any rights to purchase or acquire, Common Stock issued or sold pursuant
to an equity line of credit or similar financing arrangement entered into between the Company
and the Agent or an affiliate of the Agent); provided, however, that such restrictions
will not apply in connection with the Company’s issuance or sale of (i) Common Stock,
options to purchase Common Stock, or Common Stock issuable upon the exercise of options or
other equity awards, pursuant to any stock option or benefits plan, stock ownership plan
or dividend reinvestment plan of the Company whether now in effect or hereafter implemented
or which was provided as compensation for employment or services in the ordinary course of
business, (ii) Common Stock issuable upon conversion or exchange of securities exercisable,
exchangeable or convertible into Common Stock (“Common Stock Equivalents”)
or other rights in effect or outstanding, and disclosed in filings by the Company available
on EDGAR or otherwise in writing to the Agent, (iii) Common Stock or Common Stock issuable
upon the conversion or exercise of Common Stock Equivalents, offered and sold in a negotiated
transaction to vendors, customers, strategic partners or potential strategic partners, acquisition
candidates or other investors conducted in a manner so as not to be integrated with the offering
of Common Stock hereby, and (iv) Common Stock or Common Stock issuable upon the conversion
or exercise of Common Stock Equivalents in connection with any acquisition, strategic investment
or other similar transaction (including any joint venture, strategic alliance or partnership).
21
(i) Change
of Circumstances. The Company will, at any time during the pendency of a Placement Notice
advise the Agent promptly after it shall have received notice or obtained knowledge thereof,
of any information or fact that would alter or affect in any material respect any opinion,
certificate, letter or other document required to be provided to the Agent pursuant to this
Agreement.
(j) Due
Diligence Cooperation. The Company will cooperate with any reasonable due diligence review
conducted by the Agent or its representatives in connection with the transactions contemplated
hereby, including, without limitation, providing information and making available documents
and senior corporate officers, during regular business hours and at the Company’s principal
offices, as the Agent may reasonably request.
(k) Required
Filings Relating to Placement of Placement Shares. The Company agrees that on such dates
as the Securities Act shall require, the Company will (i) file a prospectus supplement with
the Commission under the applicable paragraph of Rule 424(b) under the Securities Act (each
and every filing under Rule 424(b), a “Filing Date”), which prospectus supplement
will set forth, within the relevant period, the amount of Placement Shares sold through the
Agent, the Net Proceeds to the Company and the compensation payable by the Company to the
Agent with respect to such Placement Shares, and (ii) deliver such number of copies of each
such prospectus supplement to each exchange or market on which such sales were effected as
may be required by the rules or regulations of such exchange or market.
(l) Representation
Dates; Certificate. On or prior to the date of the first Placement Notice given hereunder
and within five (5) Trading Days of each time the Company: (i) files the Prospectus relating
to the Placement Shares or amends or supplements (other than a prospectus supplement relating
solely to an offering of securities other than the Placement Shares) the Registration Statement
or the Prospectus relating to the Placement Shares by means of a post-effective amendment,
sticker, or supplement but not by means of incorporation of documents by reference into the
Registration Statement or the Prospectus relating to the Placement Shares; (ii) files an
annual report on Form 10-K under the Exchange Act (including any Form 10-K/A containing amended
audited financial information or a material amendment to the previously filed Form 10-K);
(iii) files a quarterly report on Form 10-Q under the Exchange Act; or (iv) files a current
report on Form 8-K containing amended financial information (other than information “furnished”
pursuant to Items 2.02 or 7.01 of Form 8-K or to provide disclosure pursuant to Item 8.01
of Form 8-K relating to the reclassification of certain properties as discontinued operations
in accordance with Statement of Financial Accounting Standards No. 144) under the Exchange
Act (each date of filing of one or more of the documents referred to in clauses (i) through
(iv), a “Representation Date”), the Company shall furnish the Agent (but in the
case of clause (iv) above only if the Agent reasonably determines that the information contained
in such Form 8-K is material and informs the Company of such determination in writing) with
a certificate, in the form attached hereto as Exhibit 7(l) (the “Representation Date
Certificate”). The requirement to provide a Representation Date Certificate shall be
waived for any Representation Date occurring at a time at which no Placement Notice is pending,
which waiver shall continue until the earlier to occur of the date the Company delivers a
Placement Notice hereunder (which for such calendar quarter shall be considered a Representation
Date) and the next occurring Representation Date. Notwithstanding the foregoing, if the Company
subsequently decides to sell Placement Shares following a Representation Date when the Company
relied on such waiver and did not provide the Agent with a Representation Date Certificate,
then before the Company delivers the Placement Notice or the Agent sells any Placement Shares,
the Company shall provide the Agent with a Representation Date Certificate, dated the date
of the Placement Notice.
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(m) Legal
Opinion. On or prior to the date of the first Placement Notice given hereunder, the Company
shall cause to be furnished to the Agent a written opinion and a negative assurance letter
of Greenberg Traurig, P.A. (“Company Counsel”), in form and substance reasonably
satisfactory to the Agent. Thereafter, within five (5) Trading Days of each Representation
Date with respect to which the Company is obligated to deliver a certificate in the form
attached hereto as Exhibit 7(l) for which no waiver is applicable, the Company shall cause
to be furnished to the Agent a negative assurance letter of Company Counsel, in form and
substance reasonably satisfactory to the Agent and its counsel, provided, that in
lieu of such opinions for subsequent periodic filings under the Exchange Act, counsel may
furnish the Agent with a letter (a “Reliance Letter”) to the effect that
the Agent may rely on a prior opinion delivered under this Section 7(m) to the same extent
as if it were dated the date of such letter (except that statements in such prior opinion
shall be deemed to relate to the Registration Statement and the Prospectus as amended or
supplemented as of the date of the Reliance Letter).
(n) Comfort
Letter. On or prior to the date of the first Placement Notice given hereunder and within
five (5) Trading Days after each subsequent Representation Date, other than pursuant to
Section 7(l)(iii), the Company shall cause its independent registered public accounting
firm, Brightman Almagor Zohar & Co. (a firm in the Deloitte global network), to furnish
the Agent with letters (the “Comfort Letters”) in form and substance reasonably
satisfactory to the Agent and its counsel.
(o) Chief
Financial Officer’s Certificate. Within five (5) Trading Days after each Representation
Date pursuant to Section 7(l)(iii) for which no waiver is applicable, the Company shall have
delivered to the Agent a certificate executed by the Chief Financial Officer of the Company,
dated as of such date, in form and substance satisfactory to the Agent.
(p) Market
Activities. The Company will not, directly or indirectly, (i) take any action designed
to cause or result in, or that constitutes or would reasonably be expected to constitute,
the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of Common Stock or (ii) sell, bid for, or purchase Common Stock in violation
of Regulation M, or pay anyone any compensation for soliciting purchases of the Placement
Shares other than the Agent.
(q) Investment
Company Act. The Company will conduct its affairs in such a manner so as to reasonably
ensure that it will not become, at any time prior to the termination of this Agreement, an
“investment company,” as such term is defined in the Investment Company Act.
(r) No
Offer to Sell. Other than an Issuer Free Writing Prospectus approved in advance by the
Company and the Agent in its capacity as agent hereunder, neither the Agent nor the Company
(including its agents and representatives, other than the Agent in its capacity as such)
will make, use, prepare, authorize, approve or refer to any written communication (as defined
in Rule 405 under the Securities Act), required to be filed with the Commission, that constitutes
an offer to sell or solicitation of an offer to buy Placement Shares hereunder.
(s) Sarbanes-Oxley
Act. The Company will maintain and keep accurate books and records reflecting its assets
and maintain internal accounting controls in a manner designed to provide reasonable assurance
regarding the reliability of financial reporting and the preparation of financial statements
for external purposes in accordance with GAAP, and including those policies and procedures
that (i) pertain to the maintenance of records that in reasonable detail accurately and fairly
reflect the transactions and dispositions of the assets of the Company, (ii) provide reasonable
assurance that transactions are recorded as necessary to permit the preparation of the Company’s
consolidated financial statements in accordance with GAAP, (iii) provide reasonable assurance
that receipts and expenditures of the Company are being made only in accordance with management’s
and the Company’s directors’ authorization, and (iv) provide reasonable assurance
regarding prevention or timely detection of unauthorized acquisition, use or disposition
of the Company’s assets that could have a material effect on its financial statements.
The Company will use commercially reasonable efforts to maintain such controls and other
procedures that comply with the requirements of the Exchange Act.
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8.
Payment of Expenses.
The
Company will pay all expenses incident to the performance of its obligations under this Agreement, including (i) the preparation, filing,
including any fees required by the Commission, and printing of the Registration Statement (including financial statements and exhibits)
as originally filed and of each amendment and supplement thereto, in such number as the Agent shall deem necessary, (ii) the printing
and delivery to the Agent of this Agreement and such other documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Placement Shares, (iii) the preparation, issuance and delivery of the certificates, if any, for the Placement
Shares to the Agent, including any stock or other transfer taxes and any capital duties, stamp duties or other duties or taxes payable
upon the sale, issuance or delivery of the Placement Shares to the Agent, (iv) the fees and disbursements of the counsel, accountants
and other advisors to the Company, (v) the reasonable out-of-pocket expenses of Agent, including fees and disbursements of counsel to
the Agent, in an amount up to (a) $75,000 in connection with execution of this Agreement (which amount shall include all fees
and disbursements of such counsel described in clause (x) below) and (b) quarterly disbursements of counsel to the Agent up to $7,500
per calendar quarter, (vi) the printing and delivery to the Agent of copies of any Permitted Issuer Free Writing Prospectus (defined
below) and the Prospectus and any amendments or supplements thereto in such number as the Agent shall deem necessary, (vii) the preparation,
printing and delivery to the Agent of copies of the blue sky survey and any supplements thereto, in such number as the Agent shall deem
necessary, (viii) the fees and expenses of the transfer agent and registrar for the Common Stock, (ix) the fees and expenses incurred
in connection with the listing of the Placement Shares on the Exchange, and (x) any filing fees and other expenses (including financial
printing costs) incident to any required review by FINRA of the terms of the sale of the Placement Shares.
9.
Conditions to the Agent’s Obligations.
The
obligations of the Agent hereunder with respect to a Placement will be subject to the continuing accuracy and completeness of the representations
and warranties made by the Company herein (other than those representations and warranties made as of a specified date or time), to the
due performance in all material respects by the Company of its obligations hereunder, to the completion by the Agent of a due diligence
review satisfactory to it in its reasonable judgment, and to the continuing reasonable satisfaction (or waiver by the Agent in its sole
discretion) of the following additional conditions:
(a) Registration
Statement Effective. The Registration Statement shall remain effective and shall be available
for the sale of all Placement Shares contemplated to be issued by any Placement Notice.
(b) No
Material Notices. None of the following events shall have occurred and be continuing:
(i) receipt by the Company of any request for additional information from the Commission
or any other federal or state governmental authority during the period of effectiveness of
the Registration Statement, the response to which would require any post-effective amendments
or supplements to the Registration Statement or the Prospectus; (ii) the issuance by the
Commission or any other federal or state governmental authority of any stop order suspending
the effectiveness of the Registration Statement or receipt by the Company of notification
of the initiation of any proceedings for that purpose; (iii) receipt by the Company of any
notification with respect to the suspension of the qualification or exemption from qualification
of any of the Placement Shares for sale in any jurisdiction or receipt by the Company of
notification of the initiation of, or a written threat to initiate, any proceeding for such
purpose; or (iv) the occurrence of any event that makes any material statement made in the
Registration Statement or the Prospectus or any material Incorporated Document untrue in
any material respect or that requires the making of any changes in the Registration Statement,
the Prospectus, or any material Incorporated Document so that, in the case of the Registration
Statement, it will not contain any materially untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make the statements
therein not misleading and that, in the case of the Prospectus, it will not contain any materially
untrue statement of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
24
(c) No
Misstatement or Omission. Agent shall not have advised the Company that the Registration
Statement or Prospectus, or any amendment or supplement thereto, contains an untrue statement
of fact that in the Agent’s reasonable opinion is material, or omits to state a fact
that in the Agent’s reasonable opinion is material and is required to be stated therein
or is necessary to make the statements therein not misleading.
(d) Material
Changes. Except as contemplated in the Prospectus, or disclosed in the Company’s
reports filed with the Commission, there shall not have been any Material Adverse Effect,
or any development that would reasonably be expected to cause a Material Adverse Effect,
or a downgrading in or withdrawal of the rating assigned to any of the Company’s securities
(other than asset backed securities) by any rating organization or a public announcement
by any rating organization that it has under surveillance or review its rating of any of
the Company’s securities (other than asset backed securities), the effect of which,
in the case of any such action by a rating organization described above, in the reasonable
judgment of the Agent (without relieving the Company of any obligation or liability it may
otherwise have), is so material as to make it impracticable or inadvisable to proceed with
the offering of the Placement Shares on the terms and in the manner contemplated in the Prospectus.
(e) Legal
Opinion. The Agent shall have received the opinion and negative assurance letter required
to be delivered pursuant to Section 7(m) on or before the date on which such delivery of
such opinion and negative assurance letter are required pursuant to Section 7(m).
(f) Comfort
Letter. The Agent shall have received the Comfort Letter required to be delivered pursuant
to Section 7(n) on or before the date on which such delivery of such Comfort Letter is required
pursuant to Section 7(n).
(g) Representation
Certificate. The Agent shall have received the certificate required to be delivered pursuant
to Section 7(l) on or before the date on which delivery of such certificate is required pursuant
to Section 7(l).
(h) Secretary’s
Certificate. On or prior to the first Representation Date, the Agent shall have received
a certificate, signed on behalf of the Company by its corporate Secretary, in form and substance
satisfactory to the Agent and its counsel.
(i) No
Suspension. Trading in the Common Stock shall not have been suspended on the Exchange,
and the Common Stock shall not have been delisted from the Exchange.
(j) Other
Materials. On each date on which the Company is required to deliver a certificate pursuant
to Section 7(l), the Company shall have furnished to the Agent such appropriate further information,
certificates and documents as the Agent may reasonably request and which are usually and
customarily furnished by an issuer of securities in connection with a securities offering
of the type contemplated hereby. All such opinions, certificates, letters and other documents
will be in compliance with the provisions hereof.
(k) Securities
Act Filings Made. All filings with the Commission required by Rule 424 under the Securities
Act to have been filed prior to the issuance of any Placement Notice hereunder shall have
been made within the applicable time period prescribed for such filing by Rule 424.
(l) Approval
for Listing. The Placement Shares shall either have been approved for listing on the
Exchange, subject only to notice of issuance, or the Company shall have filed an application
for listing of the Placement Shares on the Exchange at, or prior to, the issuance of any
Placement Notice.
(m) No
Termination Event. There shall not have occurred any event that would permit the Agent
to terminate this Agreement pursuant to Section 12(a).
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10.
Indemnification and Contribution.
(a) Company
Indemnification. The Company agrees to indemnify and hold harmless the Agent, its partners,
members, directors, officers, employees and agents and each person, if any, who controls
the Agent within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act as follows:
(i) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), 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 in any related Issuer Free Writing Prospectus
or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom 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, joint or several, 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 10(d) below) any such settlement is effected with the written consent of the Company, which consent shall not
unreasonably be delayed or withheld; and
(iii) against
any and all expense whatsoever, as incurred (including the reasonable and documented out-of-pocket fees and disbursements of counsel),
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 solely in reliance upon and in conformity with written information furnished to the Company
by the Agent expressly for use in the Registration Statement (or any amendment thereto), or in any related Issuer Free Writing Prospectus
or the Prospectus (or any amendment or supplement thereto).
(b) Agent
Indemnification. Agent agrees to indemnify and hold harmless the Company and its directors
and officers, and each person, if any, who (i) controls the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act or (ii) is controlled
by or is under common control with the Company against any and all loss, liability, claim,
damage and expense described in the indemnity contained in Section 10(a), as incurred, but
only with respect to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendments thereto) or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with information relating
to the Agent and furnished to the Company in writing by the Agent expressly for use therein.
The Company hereby acknowledges that the only information that the Agent has furnished to
the Company expressly for use in the Registration Statement, the Prospectus, any Prospectus
Supplement or any Issuer Free Writing Prospectus (or any amendment or supplement thereto)
are the statements set forth in the first sentence of the eighth paragraph and in
the ninth paragraph under the caption “Plan of Distribution” in
the Prospectus (the “Agent Information”).
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(c) Procedure.
Any party that proposes to assert the right to be indemnified under this Section 10 will,
promptly after receipt of notice of commencement of any action against such party in respect
of which a claim is to be made against an indemnifying party or parties under this Section
10, notify each such indemnifying party of the commencement of such action, enclosing a copy
of all papers served, but the omission so to notify such indemnifying party will not relieve
the indemnifying party from (i) any liability that it might have to any indemnified party
otherwise than under this Section 10 and (ii) any liability that it may have to any indemnified
party under the foregoing provision of this Section 10 unless, and only to the extent that,
such omission results in the forfeiture of substantive rights or defenses by the indemnifying
party. If any such action is brought against any indemnified party and it notifies the indemnifying
party of its commencement, the indemnifying party will be entitled to participate in and,
to the extent that it elects by delivering written notice to the indemnified party promptly
after receiving notice of the commencement of the action from the indemnified party, jointly
with any other indemnifying party similarly notified, to assume the defense of the action,
with counsel reasonably satisfactory to the indemnified party, , and after notice from the
indemnifying party to the indemnified party of its election to assume the defense, the indemnifying
party will not be liable to the indemnified party for any legal or other expenses except
as provided below and except for the reasonable costs of investigation subsequently incurred
by the indemnified party in connection with the defense. The indemnified party will have
the right to employ its own counsel in any such action, but the fees, expenses and other
charges of such counsel will be at the expense of such indemnified party unless (1) the employment
of counsel by the indemnified party has been authorized in writing by the indemnifying party,
(2) the indemnified party has reasonably concluded (based on written advice of counsel) that
there may be legal defenses available to it or other indemnified parties that are different
from or in addition to those available to the indemnifying party, (3) a conflict or potential
conflict exists (based on written advice of counsel to the indemnified party) between the
indemnified party and the indemnifying party (in which case the indemnifying party will not
have the right to direct the defense of such action on behalf of the indemnified party) or
(4) the indemnifying party has not in fact employed counsel to assume the defense of such
action within a reasonable time after receiving notice of the commencement of the action,
in each of which cases the reasonable and documented out-of-pocket fees, disbursements and
other charges of counsel will be at the expense of the indemnifying party or parties. It
is understood that the indemnifying party or parties shall not, in connection with any proceeding
or related proceedings in the same jurisdiction, be liable for the reasonable and documented
out-of-pocket fees, disbursements and other charges of more than one separate firm admitted
to practice in such jurisdiction at any one time for all such indemnified party or parties.
All such reasonable and documented out-of-pocket fees, disbursements and other charges will
be reimbursed by the indemnifying party promptly after the indemnifying party receives a
written invoice relating to fees, disbursements and other charges in reasonable detail. An
indemnifying party will not, in any event, be liable for any settlement of any action or
claim effected without its written consent. No indemnifying party shall, without the prior
written consent of each indemnified party, settle or compromise or consent to the entry of
any judgment in any pending or threatened claim, action or proceeding relating to the matters
contemplated by this Section 10 (whether or not any indemnified party is a party thereto),
unless such settlement, compromise or consent (1) includes an unconditional release of each
indemnified party from all liability arising out of such litigation, investigation, proceeding
or claim and (2) 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.
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(d) Contribution.
In order to provide for just and equitable contribution in circumstances in which the
indemnification provided for in the foregoing paragraphs of this Section 10 is applicable
in accordance with its terms but for any reason is held to be unavailable from the Company
or the Agent, the Company and the Agent will contribute to the total losses, claims, liabilities,
expenses and damages (including any investigative, legal and other expenses reasonably incurred
in connection with, and any amount paid in settlement of, any action, suit or proceeding
or any claim asserted, but after deducting any contribution received by the Company from
persons other than the Agent, such as persons who control the Company within the meaning
of the Securities Act, officers of the Company who signed the Registration Statement and
directors of the Company, who also may be liable for contribution) to which the Company and
the Agent may be subject in such proportion as shall be appropriate to reflect the relative
benefits received by the Company on the one hand and the Agent on the other hand. The relative
benefits received by the Company on the one hand and the Agent on the other hand shall be
deemed to be in the same proportion as the total net proceeds from the sale of the Placement
Shares (before deducting expenses) received by the Company bear to the total compensation
received by the Agent (before deducting expenses) from the sale of Placement Shares on behalf
of the Company. If, but only if, the allocation provided by the foregoing sentence is not
permitted by applicable law, the allocation of contribution shall be made in such proportion
as is appropriate to reflect not only the relative benefits referred to in the foregoing
sentence but also the relative fault of the Company, on the one hand, and the Agent, on the
other hand, with respect to the statements or omission that resulted in such loss, claim,
liability, expense or damage, or action in respect thereof, as well as any other relevant
equitable considerations with respect to such offering. Such relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates to information
supplied by the Company or the Agent, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such statement or omission. The
Company and the Agent agree that it would not be just and equitable if contributions pursuant
to this Section 10(d) were to be determined by pro rata allocation or by any other method
of allocation that does not take into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the loss, claim, liability,
expense, or damage, or action in respect thereof, referred to above in this Section 10(d)
shall be deemed to include, for the purpose of this Section 10(d), any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating or defending
any such action or claim to the extent consistent with Section 10(c) hereof. Notwithstanding
the foregoing provisions of this Section 10(d), the Agent shall not be required to contribute
any amount in excess of the commissions received by it under this Agreement and no person
found guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 10(d), any person who controls
a party to this Agreement within the meaning of the Securities Act, and any officers, directors,
partners, employees or agents of the Agent, will have the same rights to contribution as
that party, and each officer of the Company who signed the Registration Statement will have
the same rights to contribution as the Company, subject in each case to the provisions hereof.
Any party entitled to contribution, promptly after receipt of notice of commencement of any
action against such party in respect of which a claim for contribution may be made under
this Section 10(d), will notify any such party or parties from whom contribution may be sought,
but the omission to so notify will not relieve that party or parties from whom contribution
may be sought from any other obligation it or they may have under this Section 10(d) except
to the extent that the failure to so notify such other party materially prejudiced the substantive
rights or defenses of the party from whom contribution is sought. Except for a settlement
entered into pursuant to the last sentence of Section 10(c) hereof, no party will be liable
for contribution with respect to any action or claim settled without its written consent
if such consent is required pursuant to Section 10(c) hereof.
28
11. Additional Covenants.
(a) Representations
and Covenants of the Agent. The Agent represents and warrants that it is duly registered
as a broker-dealer under FINRA, the Exchange Act and the applicable statutes and regulations
of each state in which the Placement Shares will be offered and sold, except such states
in which the Agent is exempt from registration or such registration is not otherwise required.
The Agent shall continue, for the term of this Agreement, to be duly registered as a broker-dealer
under FINRA, the Exchange Act and the applicable statutes and regulations of each state in
which the Placement Shares will be offered and sold, except such states in which the Agent
is exempt from registration or such registration is not otherwise required. The Agent shall
comply with all applicable law and regulations in connection with the transactions contemplated
by this Agreement, including the issuance and sale through the Agent of the Placement Shares.
(b) Representations
and Agreements to Survive Delivery. The indemnity and contribution agreements contained
in Section 10 of this Agreement and all representations and warranties of the Company herein
or in certificates delivered pursuant hereto shall survive, as of their respective dates,
regardless of (i) any investigation made by or on behalf of the Agent, any controlling persons,
or the Company (or any of their respective officers, directors or controlling persons), (ii)
delivery and acceptance of the Placement Shares and payment therefor or (iii) any termination
of this Agreement.
12. Termination.
(a) The
Agent may terminate this Agreement, by written notice to the Company, as hereinafter specified
at any time (1) if there has been, since the time of execution of this Agreement or since
the date as of which information is given in the Prospectus, any Material Adverse Effect,
or any development that is reasonably likely to have a Material Adverse Effect or, in the
sole judgment of the Agent, is material and adverse and makes it impractical or inadvisable
to market the Placement Shares or to enforce contracts for the sale of the Placement Shares,
(2) 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 Agent, impracticable
or inadvisable to market the Placement Shares or to enforce contracts for the sale of the
Placement Shares, (3) if trading in the Common Stock has been suspended or limited by the
Commission or the Exchange, or if trading generally on the Exchange has been suspended or
limited, or minimum prices for trading have been fixed on the Exchange, (4) if any suspension
of trading of any securities of the Company on any exchange or in the over-the-counter market
shall have occurred and be continuing, (5) if a major disruption of securities settlements
or clearance services in the United States shall have occurred and be continuing, or (6)
if a banking moratorium has been declared by either U.S. Federal or New York authorities.
Any such termination shall be without liability of any party to any other party except that
the provisions of Section 8 (Expenses), Section 10 (Indemnification), Section 11 (Survival
of Representations), Section 17 (Governing Law; Consent to Jurisdiction) and Section 18 (Waiver
of Jury Trial) hereof shall remain in full force and effect notwithstanding such termination.
If the Agent elects to terminate this Agreement as provided in this Section 12(a), the Agent
shall provide the required notice as specified in Section 13 (Notices).
(b) The
Company shall have the right, by giving five (5) days’ written notice as hereinafter
specified, to terminate this Agreement in its sole discretion at any time after the date
of this Agreement. Any such termination shall be without liability of any party to any other
party except that the provisions of Section 8, Section 10, Section 11, Section 17 and Section
18 hereof shall remain in full force and effect notwithstanding such termination.
29
(c) The
Agent shall have the right, by giving five (5) days’ written notice as hereinafter
specified, to terminate this Agreement in its sole discretion at any time after the date
of this Agreement. Any such termination shall be without liability of any party to any other
party except that the provisions of Section 8, Section 10, Section 11, Section 17 and Section
18 hereof shall remain in full force and effect notwithstanding such termination.
(d) Unless
earlier terminated pursuant to this Section 12, this Agreement shall automatically terminate
upon the issuance and sale of all of the Placement Shares through the Agent on the terms
and subject to the conditions set forth herein; provided that the provisions of Section 8,
Section 10, Section 11, Section 17 and Section 18 hereof shall remain in full force and effect
notwithstanding such termination.
(e) This
Agreement shall remain in full force and effect unless terminated pursuant to Sections 12(a),
(b), (c), or (d) above or otherwise by mutual agreement of the parties; provided, however,
that any such termination by mutual agreement shall in all cases be deemed to provide that
Section 8, Section 10, Section 11(b), Section 17 and Section 18 shall remain in full force
and effect. Upon any termination or expiration of this Agreement, the Company shall not have
any liability to the Agent for any discount, commission or other compensation with respect
to any Placement Shares not otherwise sold by the Agent under this Agreement.
(f) Any
termination of this Agreement shall be effective on the date specified in such notice of
termination; provided, however, that such termination shall not be effective until the close
of business on the date of receipt of such notice by the Agent or the Company, as the case
may be. If such termination shall occur prior to the Settlement Date for any sale of Placement
Shares, such Placement Shares shall settle in accordance with the provisions of this Agreement.
(g) Subject
to the additional limitations set forth in Section 8 of this Agreement, in the event of termination
of this Agreement prior to the sale of any Placement Shares, the Agent shall be entitled
only to reimbursement of its out-of-pocket expenses actually incurred.
13. Notices.
All
notices or other communications required or permitted to be given by any party to any other party pursuant to the terms of this Agreement
shall be in writing, unless otherwise specified, and if sent to the Agent, shall be delivered to:
Roth
Capital Partners, LLC
888
San Clemente Drive, Suite 400
Newport
Beach, CA 92660
Fax
No.: (949) 720-7227
Attention:
Managing Director
30
and
Duane
Morris LLP
22
Vanderbilt Avenue
New
York, NY 10017-4669
Attn:
Dean M. Colucci
Phone:
+1 973 424 2020
E-mail:
dmcolucci@duanemorris.com
and
if to the Company, shall be delivered to:
Odysight.ai
Inc.
12
Abba Hillel Silver RD, Sasson Hugi Tower
Ramat
Gan 5250606, Israel
Attn:
Einav Brenner
E-mail:
einavb@odysight.ai
with
a copy to:
Greenberg
Traurig, P.A.
One
Azrieli Center, Round Tower, 30th Floor
132
Menachem Begin Rd
Tel
Aviv 6701101, Israel
Attn:
Gary Emmanuel, Esq.
E-mail:
gary.emmanuel@gtlaw.com
Each
party to this Agreement may change such address for notices by sending to the parties to this Agreement written notice of a new address
for such purpose. Each such notice or other communication shall be deemed given (i) when delivered personally or by email on or before
4:30 p.m., New York City time, on a Business Day or, if such day is not a Business Day, on the next succeeding Business Day, (ii) on
the next Business Day after timely delivery to a nationally-recognized overnight courier and (iii) on the Business Day actually received
if deposited in the U.S. mail (certified or registered mail, return receipt requested, postage prepaid).
14. Successors
and Assigns.
This
Agreement shall inure to the benefit of and be binding upon the Company and the Agent and their respective successors and the affiliates,
controlling persons, officers and directors referred to in Section 10 hereof. References to any of the parties contained in this Agreement
shall be deemed to include the successors and permitted assigns of such party. Nothing in this Agreement, express or implied, is intended
to confer upon any party other than the parties hereto or their respective successors and permitted assigns any rights, remedies, obligations
or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement. Neither party may assign its rights
or obligations under this Agreement without the prior written consent of the other party.
31
15. Adjustments
for Stock Splits.
The
parties acknowledge and agree that all share-related numbers contained in this Agreement shall be adjusted to take into account any stock
split, stock consolidation, stock dividend or similar event effected with respect to the Placement Shares.
16. Entire
Agreement; Amendment; Severability.
This
Agreement (including all schedules and exhibits attached hereto and Placement Notices issued pursuant hereto) constitutes the entire
agreement and supersedes all other prior and contemporaneous agreements and undertakings, both written and oral, among the parties hereto
with regard to the subject matter hereof. Neither this Agreement nor any term hereof may be amended except pursuant to a written instrument
executed by the Company and the Agent. In the event that any one or more of the provisions contained herein, or the application thereof
in any circumstance, is held invalid, illegal or unenforceable as written by a court of competent jurisdiction, then such provision shall
be given full force and effect to the fullest possible extent that it is valid, legal and enforceable, and the remainder of the terms
and provisions herein shall be construed as if such invalid, illegal or unenforceable term or provision was not contained herein, but
only to the extent that giving effect to such provision and the remainder of the terms and provisions hereof shall be in accordance with
the intent of the parties as reflected in this Agreement.
17. GOVERNING
LAW AND TIME; WAIVER OF JURY TRIAL.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICTS OF LAWS. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME. THE COMPANY AND THE AGENT HEREBY IRREVOCABLY WAIVE, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY.
18. CONSENT
TO JURISDICTION.
EACH
PARTY HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE CITY OF NEW
YORK, BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH ANY TRANSACTION CONTEMPLATED HEREBY,
AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT
TO THE JURISDICTION OF ANY SUCH COURT, THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR THAT THE VENUE OF
SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS
BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF (CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED)
TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND
SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS
IN ANY MANNER PERMITTED BY LAW.
32
19. Use
of Information.
The
Agent may not use any information gained in connection with this Agreement and the transactions contemplated by this Agreement, including
due diligence, to advise any party with respect to transactions not expressly approved by the Company.
20. Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute
one and the same instrument. The words “execution,” “execute”, “signed,” “sign,” “signature,”
and words of like import in or related to any document to be signed in connection with this Agreement and the transactions contemplated
hereby shall be deemed to include electronic signatures, or the keeping of records in electronic form, each of which shall be of the
same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the
case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National
Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic
Transactions Act.
21. Effect
of Headings.
The
section and Exhibit headings herein are for convenience only and shall not affect the construction hereof.
22. Permitted
Free Writing Prospectuses.
The
Company represents, warrants and agrees that, unless it obtains the prior consent of the Agent, and the Agent represents, warrants and
agrees that, unless it obtains the prior consent of the Company, it has not made and will not make any offer relating to the Placement
Shares that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,”
as defined in Rule 405, required to be filed with the Commission. Any such free writing prospectus consented to by the Agent or by the
Company, as the case may be, is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents
and warrants that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing
prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted
Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.
33
23. Absence
of Fiduciary Relationship.
The
Company acknowledges and agrees that: (a) The Agent is acting solely as agent in connection with the public offering of the Placement
Shares and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary
or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or
employees or any other party, on the one hand, and the Agent, on the other hand, has been or will be created in respect of any of the
transactions contemplated by this Agreement, irrespective of whether or not the Agent has advised or is advising the Company on other
matters, and the Agent has no obligation to the Company with respect to the transactions contemplated by this Agreement except the obligations
expressly set forth in this Agreement; (b) it is capable of evaluating and understanding, and understands and accepts, the terms, risks
and conditions of the transactions contemplated by this Agreement; (c) the Agent has not provided any legal, accounting, regulatory or
tax advice with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory
and tax advisors to the extent it has deemed appropriate; (d) it is aware that the Agent and its affiliates are engaged in a broad range
of transactions which may involve interests that differ from those of the Company and the Agent has no obligation to disclose such interests
and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; and (e) it waives, to the fullest
extent permitted by law, any claims it may have against the Agent for breach of fiduciary duty or alleged breach of fiduciary duty in
connection with the sale of Placement Shares under this Agreement and agrees that the Agent shall not have any liability (whether direct
or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty
claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of the Agent’s obligations
under this Agreement and to keep information provided by the Company to the Agent and the Agent’s counsel confidential to the extent
not otherwise publicly-available.
24. Definitions.
As
used in this Agreement, the following terms have the respective meanings set forth below:
“Applicable
Time” means (i) each Representation Date and (ii) the time of each sale of any Placement Shares pursuant to this Agreement.
“Business
Day” shall mean any day on which the Exchange and commercial banks in the City of New York are open for business.
“Issuer
Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433, relating to the Placement
Shares that (1) is required to be filed with the Commission by the Company, (2) is a “road show” 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 (3) is exempt
from filing pursuant to Rule 433(d)(5)(i) because it contains a description of the Placement Shares 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) under the Securities Act.
“Rule
172,” “Rule 405,” “Rule 415,” “Rule 424,” “Rule 424(b),” “Rule 430B,”
and “Rule 433” refer to such rules under the Securities Act.
“Trading
Day” means any day on which the Exchange is open for trading.
All
references in this Agreement to financial statements and schedules and other information that is “contained,” “included”
or “stated” in the Registration Statement or the Prospectus (and all other references of like import) shall be deemed to
mean and include all such financial statements and schedules and other information that is incorporated by reference in the Registration
Statement or the Prospectus, as the case may be. All references in this Agreement to the Registration Statement, 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 EDGAR; all
references in this Agreement to any Issuer Free Writing Prospectus (other than any Issuer Free Writing Prospectuses that, pursuant to
Rule 433, are not required to be filed with the Commission) shall be deemed to include the copy thereof filed with the Commission pursuant
to EDGAR; and all references in this Agreement to “supplements” to the Prospectus shall include, without limitation, any
supplements, “wrappers” or similar materials prepared in connection with any offering, sale or private placement of any Placement
Shares by the Agent outside of the United States.
[Remainder
of the page intentionally left blank]
34
If
the foregoing correctly sets forth the understanding between the Company and the Agent, please so indicate in the space provided below
for that purpose, whereupon this letter shall constitute a binding agreement between the Company and the Agent.
Very
truly yours,
ODYSIGHT.AI
INC.
By:
Name:
Yehu
Ofer
Title:
Chief
Executive Officer
ACCEPTED
as of the date first-above written:
ROTH
CAPITAL PARTNERS, LLC
By:
Name:
Title:
35
SCHEDULE
1
FORM
OF PLACEMENT NOTICE
From:
ODYSIGHT.AI INC.
To:
ROTH CAPITAL PARTNERS, LLC
Attention:
___________________
Subject:
Placement Notice
Date:
Gentlemen:
Pursuant
to the terms and subject to the conditions contained in the Sales Agreement between Odysight.ai Inc. (the “Company”) and
Roth Capital Partners, LLC (“Agent”), dated June 5, 2026, the Company hereby requests that the Agent sell up to ____________
of the Company’s Common Stock, $0.001 par value per share, at a minimum market price of $_______ per share, during the time period
beginning [month, day, time] and ending [month, day, time].
36
SCHEDULE
2
Compensation
The
Company shall pay to the Agent in cash, upon each sale of Placement Shares pursuant to this Agreement, an amount equal to up to 3.0%
of the gross proceeds from each sale of Placement Shares.
37
SCHEDULE
3
Notice
Parties
The
Company
Yehu Ofer
yehu.ofer@odysight.ai
Einav Brenner
einavb@odysight.ai
The
Agent
Lou
Ellis LEllis@roth.com
Nazan Akdeniz
NAkdeniz@roth.com
Seth Appel
sappel@roth.com
With
a copy to RothECM@roth.com
38
EXHIBIT
7(l)
Form
of Representation Date Certificate
____________________,
20__
This
Representation Date Certificate (this “Certificate”) is executed and delivered in connection with Section 7(l) of the Sales
Agreement (the “Agreement”), dated June 5, 2026, and entered into between Odysight.ai Inc. (the “Company”)
and Roth Capital Partners, LLC. All capitalized terms used but not defined herein shall have the meanings given to such terms in the
Agreement.
The
undersigned, a duly appointed and authorized officer of the Company, hereby certifies on behalf of the Company and not in its individual
capacity, as follows:
1. As
of the date of this Certificate (i) the Registration Statement does not contain any untrue
statement of a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein not misleading and (ii) neither the
Registration Statement nor the Prospectus contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were made, not misleading
and (iii) no event has occurred as a result of which it is necessary to amend or supplement
the Prospectus in order to make the statements therein not untrue or misleading for this
paragraph 1 to be true.
2. Each
of the representations and warranties of the Company contained in the Agreement were, when
originally made, and are, as of the date of this Certificate, true and correct in all material
respects (unless such representation or warranty specifies a different date or time, in which
case such representation or warranty is true and correct in all material respects as of such
date or time, as applicable), provided, however, that such representations
and warranties also shall be qualified by the disclosure included or incorporated by reference
in the Registration Statement and the Prospectus.
3. Each
of the covenants required to be performed by the Company in the Agreement on or prior to
the date of the Agreement, this Representation Date, and each such other date as set forth
in the Agreement, has been duly, timely and fully performed in all material respects and
each condition required to be complied with by the Company on or prior to the date of the
Agreement, this Representation Date, and each such other date as set forth in the Agreement
has been duly, timely and fully complied with in all material respects.
4. Subsequent
to the date of the most recent financial statements in the Prospectus, there has been no
Material Adverse Effect.
5. No
stop order suspending the effectiveness of the Registration Statement or of any part thereof
has been issued, and no proceedings for that purpose have been instituted or are pending
or, to the Company’s knowledge threatened by any securities or other governmental authority
(including, without limitation, the Commission).
6. The
Company has complied with all agreements and satisfied all conditions on its part to be performed
or satisfied pursuant to the Agreement at or prior to the date hereof.
The
undersigned has executed this Representation Date Certificate as of the date first written above.
ODYSIGHT.AI
INC.
By:
Name:
Title:
39
EX-5.1
EX-5.1
Filename: ex5-1.htm · Sequence: 3
Exhibit
5.1
June
5, 2026
Odysight.ai
Inc.
12
Abba Hillel Silver RD, Sasson Hugi Tower
Ramat
Gan 5250606, Israel
Re:
Odysight.ai Inc.
Ladies
and Gentlemen:
We
have acted as special counsel to Odysight.ai Inc., a Nevada corporation (the “Company”), in connection with the sale from
time to time by the Company pursuant to the Sales Agreement executed by the Company and Roth Capital Partners, LLC on June 5, 2026
(the “Offering Agreement”), of shares of the Company’s common stock, par value $0.001 per share (“Common Stock”),
having an aggregate offering price of up to $20,000,000 (the “ATM Shares”). The ATM Shares will be issued pursuant to a registration
statement on Form S-3 (Registration No. 333-293080) (the “Registration Statement”), filed by the Company with the Securities
and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended (the “Securities Act”), the
base prospectus contained therein, and the prospectus supplement dated February 6, 2026 filed with the SEC pursuant to Rule 424(b) under
the Securities Act (the “Prospectus Supplement”, and together with the base prospectus, the “Prospectus”).
In
rendering our opinions set forth below, we have reviewed the Registration Statement and the Prospectus Supplement and the exhibits thereto.
We have also reviewed such corporate documents and records of the Company, such certificates of public officials and officers of the
Company and such other matters as we have deemed necessary or appropriate for purposes of this opinion. In our examination, we have assumed:
(i) the authenticity of original documents and the genuineness of all signatures; (ii) the conformity to the originals of all documents
submitted to us as copies; (iii) the truth, accuracy and completeness of the information, representations and warranties contained in
the instruments, documents, certificates and records we have reviewed; and (iv) the legal capacity for all purposes relevant hereto of
all natural persons and, with respect to all parties to agreements or instruments relevant hereto other than the Company, that such parties
had the requisite power and authority (corporate or otherwise) to execute, deliver and perform such agreements or instruments, that such
agreements or instruments have been duly authorized by all requisite action (corporate or otherwise), executed and delivered by such
parties and that such agreements or instruments are the valid, binding and enforceable obligations of such parties. As to any facts material
to the opinions expressed herein that were not independently established or verified, we have relied upon oral or written statements
and representations of officers and other representatives of the Company.
Based
upon, subject to and limited by the foregoing, we are of the opinion that, as of the date hereof, when the ATM Shares have been issued
and sold in accordance with the Offering Agreement, and as described in the Registration Statement and Prospectus, the ATM Shares will
be validly issued, fully paid and nonassessable.
The
opinion set forth above are subject to the following exceptions, limitations and qualifications: (i) the effect of bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to or affecting the rights
and remedies of creditors; (ii) the effect of general principles of equity, including without limitation, concepts of materiality, reasonableness,
good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether enforcement
is considered in a proceeding in equity or at law, and the discretion of the court before which any proceeding therefor may be brought;
and (iii) the unenforceability under certain circumstances under law or court decisions of provisions providing for the indemnification
of, or contribution to, a party with respect to liability where such indemnification or contribution is contrary to public policy. We
express no opinion concerning the enforceability of any waiver of rights or defenses with respect to stay, extension or usury laws.
We
express no opinion as to the applicability of, compliance with or effect of the laws of any jurisdiction other than the corporation laws
of the State of Nevada and, to the extent relevant to the opinions expressed herein, the laws of the State of New York.
We
hereby consent to the inclusion of this opinion as Exhibit 5.1 to the Registration Statement and to the references to our firm therein
and in the Prospectus under the caption “Legal Matters.” In giving our consent, we do not admit that we are in the category
of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations thereunder.
This
opinion speaks only as of the date hereof. We expressly disclaim any responsibility to advise you of any development or circumstance
of any kind, including any change of law or fact, that may occur after the date of this opinion that might affect the opinions expressed
therein.
Very truly yours,
/s/ Greenberg Traurig, P.A.
Greenberg Traurig, P.A.
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v3.26.1
Cover
Jun. 05, 2026
Cover [Abstract]
Document Type
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false
Document Period End Date
Jun. 05, 2026
Entity File Number
001-42497
Entity Registrant Name
ODYSIGHT.AI
INC.
Entity Central Index Key
0001577445
Entity Tax Identification Number
47-4257143
Entity Incorporation, State or Country Code
NV
Entity Address, Address Line One
12 Abba Hillel Silver RD
Entity Address, Address Line Two
Sasson Hugi Tower
Entity Address, City or Town
Ramat
Gan
Entity Address, Country
IL
Entity Address, Postal Zip Code
5250606
City Area Code
+972
Local Phone Number
73 370-4690
Written Communications
false
Soliciting Material
false
Pre-commencement Tender Offer
false
Pre-commencement Issuer Tender Offer
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Title of 12(b) Security
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Trading Symbol
ODYS
Security Exchange Name
NASDAQ
Entity Emerging Growth Company
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- Definition
Address Line 1 such as Attn, Building Name, Street Name
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Address Line 2 such as Street or Suite number
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- Definition
Name of the City or Town
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- Definition
ISO 3166-1 alpha-2 country code.
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No definition available.
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Data Type:
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- Definition
Code for the postal or zip code
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- Definition
A unique 10-digit SEC-issued value to identify entities that have filed disclosures with the SEC. It is commonly abbreviated as CIK.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
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- Definition
Indicate if registrant meets the emerging growth company criteria.
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Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
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- Definition
Commission file number. The field allows up to 17 characters. The prefix may contain 1-3 digits, the sequence number may contain 1-8 digits, the optional suffix may contain 1-4 characters, and the fields are separated with a hyphen.
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No definition available.
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- Definition
Two-character EDGAR code representing the state or country of incorporation.
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No definition available.
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- Definition
The exact name of the entity filing the report as specified in its charter, which is required by forms filed with the SEC.
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Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
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- Definition
The Tax Identification Number (TIN), also known as an Employer Identification Number (EIN), is a unique 9-digit value assigned by the IRS.
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Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
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- Definition
Local phone number for entity.
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- Definition
Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act.
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Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 13e
-Subsection 4c
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Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act.
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Reference 1: http://www.xbrl.org/2003/role/presentationRef
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-Section 14d
-Subsection 2b
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- Definition
Title of a 12(b) registered security.
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Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b
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- Definition
Name of the Exchange on which a security is registered.
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Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection d1-1
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- Definition
Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as soliciting material pursuant to Rule 14a-12 under the Exchange Act.
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Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
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- Definition
Trading symbol of an instrument as listed on an exchange.
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No definition available.
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Period Type:
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- Definition
Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act.
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Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Securities Act
-Number 230
-Section 425
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