Form 8-K
8-K — Strive, Inc.
Accession: 0000950103-26-016138
Filed: 2026-10-26
Period: 2026-10-26
CIK: 0001920406
SIC: 6199 (FINANCE SERVICES)
Item: Entry into a Material Definitive Agreement
Item: Other Events
Item: Financial Statements and Exhibits
Documents
8-K — dp255514_8k.htm (Primary)
EX-1.1 — EXHIBIT 1.1 (dp255514_ex0101.htm)
EX-5.1 — EXHIBIT 5.1 (dp255514_ex0501.htm)
EX-99.1 — EXHIBIT 99.1 (dp255514_ex9901.htm)
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2026-10-26
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2026-10-26
2026-10-26
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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):
October 26, 2026
STRIVE, INC.
(Exact name of Company as specified in its charter)
Nevada
001-41612
88-1293236
(State or Other Jurisdiction
of Incorporation)
(Commission File Number)
(IRS Employer
Identification No.)
200 Crescent Ct., Suite 1400, Dallas, Texas
75201
(Address of principal executive offices)
(Zip Code)
(855) 427-7360
(Company’s telephone number, including area code)
(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 Company under any of the following provisions:
☐
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
Trading Symbol(s)
Name of each exchange on which registered
Class A Common Stock, $0.001 par value per share
ASST
The Nasdaq Stock Market LLC
Variable Rate Series A Perpetual Preferred Stock, $0.001 par value per share
SATA
The Nasdaq Stock Market LLC
15.00% Series A Perpetual SATS Preferred Stock, $0.001 par value per share
SATS
The Nasdaq Stock Market LLC
Indicate by check mark whether the Company is
an emerging growth company as defined in Rule 405 of the Securities Act of 1933 or Rule 12b-2 of the Securities Exchange Act of 1934.
Emerging Growth Company ☒
If an emerging growth company, indicate by check
mark if the Company 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.
Sales Agreement
On October 26, 2026, the
Company entered into a Controlled Equity OfferingSM Sales Agreement (the “Sales Agreement”) with
each of Cantor Fitzgerald & Co. (“Cantor”), Barclays Capital Inc. (“Barclays”), Clear Street
LLC (“Clear Street”), StoneX Financial Inc. (“StoneX”), B. Riley Securities, Inc. (“B.
Riley”), Maxim Group LLC (“Maxim”) and H.C. Wainwright & Co., LLC (“H.C. Wainwright”)
(each, an “Agent” and collectively, the “Agents”), pursuant to which the Company from time to time,
at its option, may offer and sell shares (the “ATM Shares”) of its 15.00% Series A Perpetual SATS Preferred Stock,
$0.001 par value per share (the “SATS Stock”) to or through the Agents, acting as principal and/or agent, having an
aggregate sales price of up to $1,000,000,000 (the “ATM Offering”).
Subject to the terms and conditions of the Sales
Agreement, the Agents will use commercially reasonable efforts consistent with normal trading and sales practices to sell the ATM Shares
from time to time, based upon the Company’s instructions. The Sales Agreement contains customary representations and warranties
of the parties and indemnification and contribution provisions under which the Company and the Agents have agreed to indemnify each other
against certain liabilities, including liabilities under the Securities Act of 1933, as amended (the “Securities Act”).
The Agents will be entitled to a commission of
up to 2.0% of the aggregate gross proceeds from each sale of the ATM Shares pursuant to the Sales Agreement. In addition, the Company
has agreed to reimburse certain expenses incurred by the Agents in connection with the offering.
Sales of the ATM Shares, if any, under the Agreement
may be made in transactions that are deemed to be “at the market offerings” as defined in Rule 415 under the Securities Act
of 1933, as amended, or by any other method permitted by law. The Company has no obligation to sell any of the ATM Shares, and may at
any time suspend the offering of ATM Shares under the Sales Agreement or terminate the Sales Agreement.
The ATM Shares to be sold under the Sales Agreement,
if any, will be issued and sold pursuant to a prospectus supplement (the “Prospectus Supplement”), filed with the Securities
and Exchange Commission on October 26, 2026 in connection with the ATM Offering under its existing automatic shelf registration statement
on Form S-3 (File No. 333-290252), which was filed with the Securities and Exchange Commission on September 15, 2025 (the “Registration
Statement”), and the base prospectus contained therein. This Current Report on Form 8-K shall not constitute an offer to sell
or solicitation of an offer to buy these securities, nor shall there be any sale of these securities in any state in which such offer,
solicitation or sale would be unlawful prior to registration or qualification under the securities law of such state or jurisdiction.
The foregoing description of the Sales Agreement
is not complete and is qualified in its entirety by reference to the full text of such agreement, a copy of which is filed herewith as
Exhibit 1.1 to this Current Report on Form 8-K and is incorporated herein by reference.
Brownstein Hyatt Farber Schreck, LLP, counsel
to the Company, has issued a legal opinion relating to the validity of the ATM Shares under Nevada law. A copy of such legal opinion,
including the consent included therein, is attached as Exhibit 5.1 hereto.
Item 8.01.
Other Events.
On
October 26, 2026, the Company issued a press release announcing, among other things, the filing of the Prospectus Supplement in connection
with the ATM Offering and entry into the Sales Agreement. A copy of the press release is attached as Exhibit 99.1 to this Current Report
on Form 8-K and is incorporated herein by reference.
Cautionary Statement Regarding Forward-Looking
Statements
Certain
statements herein may constitute “forward-looking statements” within the meaning of the Private Securities Litigation Reform
Act of 1995, Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Rule 175 promulgated thereunder,
and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and Rule 3b-6 promulgated thereunder,
which statements involve inherent risks and uncertainties. Examples of forward-looking statements include, but are not limited to, express
or implied statements regarding the outlook and expectations of Strive and its subsidiaries, the strategic benefits and financial benefits
of the merger transaction with Semler Scientific, Inc. (the “merger transaction”), including the expected impact of the merger
transaction on Strive’s future financial performance and the ability to successfully integrate the combined businesses, and the
anticipated use of proceeds of the ATM offering. Such statements are often characterized by the use of qualified words (and their derivatives)
such as “may,” “will,” “anticipate,” “could,” “should,” “would,”
“believe,” “contemplate,” “expect,” “estimate,” “continue,” “plan,”
“project,” “predict,” “potential,” “assume,” “forecast,” “target,”
“budget,” “outlook,” “trend,” “guidance,” “objective,” “goal,”
“strategy,” “opportunity,” and “intend,” as well as words of similar meaning or other statements
concerning opinions or judgments of Strive and its management team about future events. Forward-looking statements are based on assumptions
as of the time they are made and are subject to risks, uncertainties and other factors that are difficult to predict with regard to timing,
extent, likelihood and degree of occurrence, which could cause actual results to differ materially from anticipated results expressed
or implied by such forward-looking statements as a result of various important factors. Other risks, uncertainties and assumptions, include,
among others, the following:
· the outcome of any legal proceedings that may be instituted against Strive or its subsidiaries;
· the possibility that the anticipated benefits of the merger transaction are not realized when expected
or at all, including as a result of changes in, or problems arising from, implementation of Bitcoin treasury strategies and risks associated
with Bitcoin and other digital assets, general economic and market conditions, interest and exchange rates, monetary policy, and laws
and regulations and their enforcement;
· the diversion of management’s attention from ongoing business operations and opportunities;
· dilution caused by Strive’s issuance of additional shares of its SATS Stock, Class A Common Stock
or Variable Rate Perpetual Preferred Stock (the “SATA Stock”);
· potential adverse reactions of Strive’s clients and customers or changes to business or employee
relationships, including those resulting from the completion of the merger transaction; and
· other factors that may affect future results of Strive or the future trading performance of its SATS Stock,
Class A Common Stock or SATA Stock.
These factors are not necessarily all of the factors
that could cause Strive’s actual results, performance or achievements to differ materially from those expressed in or implied by
any of the forward-looking statements. Other factors, including unknown or unpredictable factors, also could harm Strive’s results.
Although Strive believes that its expectations
with respect to forward-looking statements are based upon reasonable assumptions within the bounds of its existing knowledge of its business
and operations, there can be no assurance that the actual results of Strive will not differ materially from any projected future results
expressed or implied by such forward-looking statements. Additional factors that could cause results to differ materially from those described
above can be found in Strive’s Annual Report on Form 10-K for the fiscal year ended December 31, 2025 and quarterly reports on Form
10-Q, and other documents subsequently filed by Strive with the SEC.
The actual results anticipated
may not be realized or, even if substantially realized, they may not have the expected consequences to or effects on Strive or its businesses
or operations. Investors are cautioned not to rely too heavily on any such forward-looking statements. Forward-looking statements contained
in this press release speak only as of the date hereof, and Strive undertakes no obligation to update or clarify these forward-looking
statements, whether as a result of new information, future events or otherwise, except to the extent required by applicable law.
No Offer or Solicitation
Neither this Current
Report on Form 8-K nor the press release filed hereto constitutes an offer to sell or the solicitation of an offer to sell or the solicitation
of an offer to buy any securities, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or
sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction.
Item 9.01
Financial Statements and Exhibits.
(d) Exhibits
Exhibit No.
Description
1.1
Sales Agreement, dated as of October 26, 2026, by and among Strive, Inc., Cantor Fitzgerald & Co., Barclays Capital Inc., Clear Street LLC, StoneX Financial Inc., B. Riley Securities, Inc., Maxim Group LLC and H.C. Wainwright & Co., LLC
5.1
Opinion of Brownstein Hyatt Farber Schreck, LLP
23.1
Consent of Brownstein Hyatt Farber Schreck, LLP (included in Exhibit 5.1)
99.1
Press Release of Strive, Inc. dated October 26, 2026
104
Cover Page Interactive Data File (embedded within the Inline XBRL document)
SIGNATURES
Pursuant to the requirements
of the Securities Exchange Act of 1934, as amended, the Company has duly caused this report to be signed on its behalf by the undersigned
hereunto duly authorized.
Date: October 26, 2026
Strive, Inc.
/s/ Matthew Cole
Name: Matthew Cole
Title: Chief Executive Officer
EX-1.1 — EXHIBIT 1.1
EX-1.1
Filename: dp255514_ex0101.htm · Sequence: 2
Exhibit 1.1
Strive, Inc.
Shares of 15.00% Series A Perpetual Sats Preferred Stock
(par value $0.001
per share)
Controlled
Equity OfferingSM Sales Agreement
October
26, 2026
Cantor Fitzgerald
& Co.
110 East 59th Street
New York, New York 10022
Barclays Capital
Inc.
745 Seventh Avenue
New York, New York 10019
Clear Street
LLC
4 World Trade Center, Floor 46
New York, New York 10007
StoneX Financial
Inc.
230 Park Ave, 10th Floor
New York, New York 10169
B. Riley Securities, Inc.
299 Park Avenue, 21st Floor
New York, New York 10171
Maxim Group LLC
300 Park Avenue, 16th Floor
New York, New York 10022
H.C. Wainwright &
Co., LLC
430 Park Avenue, 3rd Floor
New York, New York 10022
Ladies and Gentlemen:
Strive,
Inc., a Nevada corporation (the “Company”), confirms its agreement (this “Agreement”)
with Cantor Fitzgerald & Co. (“Cantor”), Barclays Capital Inc. (“Barclays”),
Clear Street LLC (“Clear Street”), StoneX Financial Inc. (“StoneX”), B. Riley Securities,
Inc. (“B. Riley”), Maxim Group LLC (“Maxim”) and H.C. Wainwright & Co., LLC (“H.C.
Wainwright” and collectively with Cantor, Barclays, Clear Street, StoneX, B. Riley and Maxim, the “Agents”
and each an “Agent”), as set forth herein.
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
in its sole discretion issue and sell to or through the Agents shares of 15.00% Series A
Perpetual Sats Preferred Stock
(the
“Placement Shares”) of the Company, par value $0.001 per share with a stated amount of $100.00 per share (the
“Preferred Stock”); provided, however, that in no event shall the Company issue or sell through
the Agents such number or dollar amount of Placement Shares, that would (a) exceed the number or dollar amount of shares of Preferred
Stock registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made, (b) exceed
the number of authorized but unissued shares of Preferred Stock (less shares of Preferred Stock issuable upon exercise, conversion or
exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized capital stock), (c) exceed
the number or dollar amount of shares of Preferred Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof,
if applicable) or (d) exceed the number or dollar amount of shares of Preferred Stock for which the Company has filed a Prospectus Supplement
(as defined below) (the lesser of (a), (b), (c) and (d), 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
the Agents shall have no obligation in connection with such compliance. The offer and sale of Placement Shares through the
Agents will be effected pursuant to the Registration Statement (as defined below) filed by the Company and which was deemed automatically
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 Preferred Stock.
The
Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”),
and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration
statement on Form S-3, including a base prospectus, relating to certain securities, including the Placement Shares 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 (the “Exchange Act”), and the rules and regulations
thereunder. The Company has prepared a prospectus included as part of the registration statement, which prospectus relates
to the Placement Shares to be issued from time to time by the Company (the “Sales Prospectus”). Except
where the context otherwise requires, such registration statement, as amended by 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 Regulations or deemed to be a part
of such registration statement pursuant to Rule 430B of the Securities Act Regulations, and any one or more additional effective
registration statements on Form S-3 from time to time that will contain a base prospectus and related prospectus or prospectus supplement,
if applicable (which shall be a “Prospectus Supplement”), with respect to the Placement Shares, is herein called
the “Registration Statement.” The base prospectus or base prospectuses (including the Sales Prospectus),
including all documents incorporated therein by reference, included in the Registration Statement, as they may be supplemented, if necessary,
by a Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been
filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued
Issuer Free Writing Prospectus(es) (as defined below), is herein called the “Prospectus.”
Any
reference herein to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus, and,
in each case, any amendments and supplements thereto, shall be deemed to refer to and include the documents, if any, incorporated by
reference therein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents,
if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment”
or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free
Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent
effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus,
as the case may be, and incorporated therein by reference. 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 the most recent 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 and determines in its sole discretion to issue and sell Placement
Shares hereunder (each, a “Placement”), it will notify an Agent
(the “Designated Agent”) by email notice (or other method mutually
agreed to in writing by the parties) of the number of Placement Shares to be issued, 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 Designated Agent set forth on Schedule 3, as such Schedule
3 may be amended in writing from time to time. The Placement Notice shall
be effective unless and until (i) the Designated Agent declines to accept the terms
contained therein for any reason, in its sole discretion, (ii) the entire amount of
the Placement Shares thereunder have been sold, (iii) the Company suspends or terminates
the Placement Notice or (iv) this Agreement has been terminated under the provisions
of Section 13. The amount of any discount, commission or other compensation
to be paid by the Company to the Designated 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 Agents 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 Designated Agent and the Designated 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 (unless such Placement Notice is declined, suspended or otherwise terminated
in accordance with the terms of this Agreement).
3. Sale
of Placement Shares by the Designated Agent. Subject to the provisions of
Section 5(a), the Designated 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 Global Market, or any other national securities exchange on which the Preferred Stock
is then listed (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 Designated 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 sales of Placement Shares hereunder setting forth the
number of Placement Shares sold on such day, the compensation payable by the Company to the Designated 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 Designated 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 Designated 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 Regulations, including without limitation sales made directly
on the Exchange, on any other existing trading market for the Preferred Stock or to or through a market maker. The Agents may also sell
Placement Shares in privately negotiated transactions, provided that the Agents receive the Company’s prior written approval for
any sales in privately negotiated transactions and if so provided in the “Plan of Distribution” section of the Prospectus
Supplement or a new Prospectus Supplement disclosing the terms of such privately negotiated transaction. “Trading
Day” means any day on which Preferred Stock is traded on the Exchange.
4. Suspension
of Sales. The Company or the Designated 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 facsimile transmission or 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 Agents
shall be waived. Each of the parties 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. 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 Agents 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 Agents shall not be obligated to sell or offer to sell any Placement
Shares.
5. Sale
and Delivery to the Designated 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 Designated
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 Designated 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 law and regulations to sell such Placement Shares up to the
amount specified, 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 Designated Agent
will be successful in selling Placement Shares, (ii) the Designated 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 Designated Agent to use its commercially reasonable efforts
consistent with its normal trading and sales practices and applicable law and regulations to sell such Placement Shares as required under
this Agreement and (iii) the Designated Agent shall be under no obligation to purchase Placement Shares on a principal basis pursuant
to this Agreement, except as otherwise agreed by the Designated 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
Designated Agent shall notify the Company of each sale of Placement Shares no later than
the opening of the Trading Day immediately following the Trading Day on which it has made
sales of Placement Shares hereunder. 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 Designated
Agent, after deduction for (i) the Designated Agent’s commission, discount or other
compensation for such sales payable by the Company pursuant to Section 2 hereof, and
(ii) any transaction fees imposed by any Governmental Authority (as defined below) in respect
of such sales.
(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 Designated Agent’s or its designee’s account (provided the Designated
Agent shall have given the Company written notice of such designee 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 Designated Agent
will deliver the related Net Proceeds in same day funds to an account designated by the Company
on, or prior to, the Settlement Date. 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 Designated Agent, the Company agrees that in
addition to and in no way limiting the rights and obligations set forth in Section 11(a)
hereto, it will (i) hold the Designated Agent harmless against any loss, claim, damage, or
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 Designated Agent 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 gross sales proceeds 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 and (B) 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 Designated 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, a duly authorized committee thereof or a duly authorized
executive
committee. Further, under no circumstances shall the Company cause or permit the aggregate offering amount of Placement Shares
sold pursuant to this Agreement to exceed the Maximum Amount.
(e) Sales
Through Agents. With respect to the offering and sale of Placement
Shares pursuant to this Agreement, the Company agrees that any offer to sell Placement Shares,
any solicitation of an offer to buy Placement Shares, and any sales of Placement Shares shall
only be effected by or through a single Agent on any single Trading Day, and the Company
shall in no event request that more than one Agent offer or sell Placement Shares pursuant
to this Agreement on the same Trading Day; provided, however, that such prohibition on the
instruction of more than one Agent on any Trading Day shall not apply to or prohibit the
appointment of a second Agent (the “Second Agent”), so long as
the Second Agent is only executing a block sale transaction after 4:00 p.m. New York City
time on such Trading Day.
6. Representations
and Warranties of the Company. The Company represents and warrants to, and
agrees with each of the Agents that as of the date of this Agreement and as of each Applicable
Time (as defined below):
(a) Registration
Statement and Prospectus. The Company and the transactions contemplated by
this Agreement meet the requirements for and comply with the applicable conditions set forth
in Form S-3 under the Securities Act. The Registration Statement has been filed
or will be filed with the Commission and has been or will be declared or deemed effective
by the Commission under the Securities Act prior to the issuance of any Placement Notices
by the Company. As of each Applicable Time, the Registration Statement is effective.
The Sales Prospectus will name the Agents as the agents 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 pursuant to this Agreement 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 Agents and their 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 the Agents have
consented. The Preferred Stock is registered pursuant to Section 12(b) of the
Exchange Act and is currently listed on the Exchange under the trading symbol “SATS.” The
Company has taken no action designed to, or likely to have the effect of, terminating the
registration of the Preferred Stock under the Exchange Act, delisting the Preferred Stock
from the Exchange, nor has the Company received any notification that the Commission or the
Exchange is contemplating terminating such registration or listing. To the Company’s
knowledge, it is in compliance with all applicable listing requirements of the Exchange.
(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 and supplement thereto
related to the Placement Shares, on the date thereof and at each Applicable Time (as defined
below), did not or will not include an untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The documents incorporated by reference
in the Prospectus or any Prospectus Supplement 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 in order to make the statements in such document, in the 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 the Agents in writing specifically
for use in the preparation thereof, it being understood and agreed that the only such information
furnished by the Agents to the Company consists of Agents’ Information (as defined
below).
(c) Conformity
with the Securities Act and Exchange Act. The Registration Statement, the
Prospectus, any Issuer Free Writing Prospectus or any amendment or supplement thereto, and
the documents incorporated by reference in the Registration Statement, the Prospectus or
any amendment or supplement thereto, 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 or 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 included
or incorporated by reference in the Registration Statement, the Prospectus and the Issuer
Free Writing Prospectuses, if any, together with the related notes and schedules, present
fairly, in all material respects, the consolidated financial position of the Company and
the Subsidiaries (as defined below) as of the dates indicated and the consolidated results
of operations, cash flows and changes in stockholders’ equity of the Company for the
periods specified and have been prepared in all material respects in compliance with the
requirements of the Securities Act and Exchange Act and in conformity with U.S. Generally
Accepted Accounting Principles (“GAAP”) applied on a consistent
basis during the periods involved; the other financial and statistical data with respect
to the Company and the Subsidiaries (as defined below) contained or incorporated by reference
in the Registration Statement, the Prospectus and the Issuer Free Writing Prospectuses, if
any, are accurately and fairly presented in all material respects and prepared on a basis
consistent, in all material respects, with the financial statements and books and records
of the Company; there are no financial statements (historical or pro forma) that are required
to be included or incorporated by reference in the Registration Statement, or the Prospectus
that are not included or incorporated by reference as required; the Company and the Subsidiaries
(as defined below) do not have any material liabilities or obligations, direct or contingent
(including any off-balance sheet
obligations),
not described in the Registration Statement (excluding the exhibits thereto) and the Prospectus or in a document incorporated by reference
therein; and all disclosures contained or incorporated by reference in the Registration Statement, the Prospectus and the Issuer Free
Writing Prospectuses, if any, regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations
of the Commission) comply in all material respects with Regulation G of the Exchange Act and Item 10 of Regulation S-K under the Securities
Act, to the extent applicable. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in
the Registration Statement and the Prospectus fairly presents the information called for in all material respects and has been prepared
in accordance with the Commission’s rules and guidelines applicable thereto.
(e) Conformity
with EDGAR Filing. The Prospectus delivered to the Agents 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.
(f) Organization. The
Company and each of the Subsidiaries are duly organized, validly existing as a corporation
and in good standing under the laws of their respective jurisdictions of organization. The
Company and each of the Subsidiaries are 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 their respective ownership or lease of property or the conduct of their respective
businesses requires such license or qualification, and have all corporate power and authority
necessary to own or hold their respective properties and to conduct their respective businesses
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, have a material adverse effect or would reasonably be expected to have
a material adverse effect on or affecting the assets, business, operations, earnings, properties,
condition (financial or otherwise), prospects, stockholders’ equity or results of operations
of the Company and the Subsidiaries taken as a whole, or prevent or materially interfere
with consummation of the transactions contemplated hereby (a “Material Adverse
Effect”).
(g) Subsidiaries. The
subsidiaries set forth on Schedule 4 (collectively, the “Subsidiaries”),
are the Company’s only significant subsidiaries (as such term is defined in Rule 1-02
of Regulation S-X promulgated by the Commission). Except as set forth in the Registration
Statement and in the Prospectus, the Company owns, directly or indirectly, all of the equity
interests of the Subsidiaries free and clear of any lien, charge, security interest, encumbrance,
right of first refusal or other restriction, and all the equity interests of the Subsidiaries
are validly issued and are fully paid, nonassessable and free of preemptive and similar rights. No
Subsidiary is currently prohibited, directly or indirectly, from paying any dividends to
the Company, from making any other distribution on such Subsidiary’s capital stock,
from repaying to the Company any loans or advances to such Subsidiary from the Company or
from transferring any of such Subsidiary’s property or assets to the Company or any
other Subsidiary of the Company.
(h) No Violation
or Default. Neither the Company nor any of its Subsidiaries is (i) in
violation of its articles of incorporation or bylaws 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 or credit agreement or other agreement or instrument to which the Company or any of its Subsidiaries is a party or
by which the Company or any of its Subsidiaries is bound or to which any of the property or assets of the Company or any of its Subsidiaries
are subject; or (iii) in violation of any law or statute or any judgment, order, rule or regulation of any Governmental 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 or any of its Subsidiaries is a party is in default in any respect thereunder where
such default would have a Material Adverse Effect.
(i) No Material
Adverse Change. Subsequent to the respective dates as of which information
is given in the Registration Statement, the Prospectus and the Issuer Free Writing Prospectuses,
if any (including any document deemed incorporated by reference therein), there has not been
(i) any Material Adverse Effect or the occurrence of any development that the Company reasonably
expects will result in a Material Adverse Effect, (ii) any transaction which is material
to the Company and the Subsidiaries taken as a whole, (iii) any obligation or liability,
direct or contingent (including any off-balance sheet obligations), incurred by the Company
or any Subsidiary, which is material to the Company and the Subsidiaries taken as a whole,
(iv) any material change in the capital stock or outstanding long-term indebtedness of the
Company or any of its Subsidiaries (other than (a) as a result of the sale of Placement Shares,
(b) the issuance of equity awards under the Company’s existing equity incentive plans
or (c) changes in the number of outstanding shares of the Company’s Class A common
stock, par value $0.001 per share (the “Common Stock”) due to the
issuance of shares upon the exercise or conversion of securities exercisable for, or convertible
into, shares of Common Stock (including warrants) outstanding on the date hereof, or the
vesting of restricted stock units outstanding on the date hereof) or (v) any dividend or
distribution of any kind declared, paid or made on the capital stock of the Company or any
Subsidiary, 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).
(j) Capitalization. The
issued and outstanding shares of capital stock of the Company have been validly issued, are
fully paid and nonassessable 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 that have not been duly waived or satisfied. 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 the grant of additional options
or other equity awards under the Company’s existing stock option plans, or 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 outstanding on the date hereof, or the vesting of restricted stock units outstanding
on the date hereof) 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. Except as disclosed in or contemplated
by the Registration Statement or the Prospectus, as of the date referred to therein, 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.
(k) Authorization;
Enforceability. The Company has full legal right, power and authority to enter
into this Agreement and to perform the transactions contemplated hereby. This
Agreement has been duly authorized, executed and delivered by the Company and is a legal,
valid and binding agreement of the Company enforceable in accordance with its terms, except
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.
(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, or a duly authorized executive committee, against payment therefor as provided herein,
will be duly and validly authorized and issued and fully paid and nonassessable, free and
clear of any pledge, lien, encumbrance, security interest or other claim (other than any
pledge, lien, encumbrance, security interest or other claim from an act or omission of the
Agents 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, and the
Certificate of Designation relating to the Preferred Stock designating the “15.00%
Series A Perpetual Sats Preferred Stock”
and establishing the rights, powers, preferences, limitations and entitlements thereof (as
amended, the “Certificate of Designation”), in each case conform
in all material respects to the description thereof set forth in or incorporated into the
Prospectus.
(m) Certificate
of Designation. The execution and filing of the Certificate of Designation
has been duly authorized by the Company and the Certificate of Designation has been duly
executed and filed with the Nevada Secretary of State.
(n) No Consents
Required. No consent, approval, authorization, order, registration or qualification
of or with any Governmental Authority 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 have been obtained or made, (ii) as may be required under applicable state securities
laws or by the bylaws and rules of the Financial Industry Regulatory Authority (“FINRA”)
or the Exchange in connection with the sale of the Placement Shares by the Agents, or (iii)
as would not, individually or in the aggregate, reasonably be expected to materially adversely
affect the consummation of the transactions contemplated by this Agreement.
(o) No Preferential
Rights. Except as set forth in the Registration Statement and the Prospectus,
(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 Preferred Stock or
shares of any other capital stock or other securities of the Company, (ii) no Person
has any preemptive rights, resale rights, rights of first refusal, rights of co-sale, or
any other rights (whether pursuant to a “poison pill” provision or otherwise)
to purchase any Preferred Stock or shares of any other capital stock or other securities
of the Company, (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 Preferred Stock,
and (iv) no Person has the right, contractual or otherwise, to require the Company to
register under the Securities Act any Preferred 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 for such rights as have been waived in writing on or prior to the date hereof.
(p) Independent
Public Accounting Firm. KPMG LLP (“KPMG”), 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 BDO USA, P.C. (“BDO” and, together with KPMG, the “Accountants”),
who have certified financial statements (including financial statements of acquired properties
or businesses) that are incorporated by reference into the Registration Statement and the
Prospectus, are and, during the periods covered by their reports, were independent registered
public accounting firms within the meaning of the Securities Act and the Public Company Accounting
Oversight Board (United States). To the Company’s knowledge, the Accountants
are not in violation of the auditor independence requirements of the Sarbanes-Oxley Act of
2002 (the “Sarbanes-Oxley Act”) with respect to the Company.
(q) Enforceability
of Agreements. All agreements between the Company and third parties expressly
referenced in the Prospectus are legal, valid and binding obligations of the Company 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, except for any unenforceability that, individually
or in the aggregate, would not have a Material Adverse Effect.
(r) No Litigation. Except
as set forth in the Registration Statement or the Prospectus, there are no actions, suits
or proceedings by or before any Governmental Authority pending, nor, to the Company’s
knowledge, any audits or investigations by or before any Governmental Authority to which
the Company or a Subsidiary is a party or to which any property of the Company or any of
its Subsidiaries is the subject that, individually or in the aggregate, if determined adversely
to the Company or such Subsidiary, would reasonably be expected to have a Material Adverse
Effect and, to the Company’s knowledge, no such actions, suits, proceedings, audits
or investigations are threatened or contemplated by any Governmental Authority
or threatened by others that, individually or in the aggregate, if determined adversely to
the Company or any of the Subsidiaries, would have a Material Adverse Effect; and (i) there
are no current or pending audits, actions, suits or proceedings, or to the Company’s
knowledge, investigations by or before any Governmental Authority 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.
(s) Consents
and Permits. The Company and each Subsidiary possess such valid and current certificates,
authorizations or permits issued by the appropriate state, federal or foreign regulatory
agencies or bodies necessary to conduct their respective businesses, and neither the Company
nor any Subsidiary has received, or has any reason to believe that it will receive, any notice
of proceedings relating to the revocation or modification of, or non-compliance with, any
such certificate, authorization or permit which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, could reasonably be expected to result in
a Material Adverse Effect.
(t) Intellectual
Property. Except as disclosed in the Registration Statement and the Prospectus,
the Company and its Subsidiaries own, possess, license or have other rights to use all foreign
and domestic patents, patent applications, trade and service marks, trade and service mark
registrations, trade names, copyrights, licenses, inventions, trade secrets, technology,
Internet domain names, know-how and other intellectual property (collectively, the “Intellectual
Property”), necessary for the conduct of their respective businesses as now
conducted, except to the extent that the failure to own, possess, license or otherwise hold
rights to use such Intellectual Property would not, individually or in the aggregate, have
a Material Adverse Effect. Except as disclosed in the Registration Statement and
the Prospectus (i) to the Company’s knowledge, there is no infringement by third parties
of any such Intellectual Property that is owned by the Company or any of its Subsidiaries;
(ii) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding
or claim by others challenging the Company’s and its Subsidiaries’ rights in
or to any such Intellectual Property that is owned by the Company or any of its Subsidiaries;
(iii) there is no pending or, to the Company’s knowledge, threatened action, suit,
proceeding or claim by others challenging the validity or scope of any such Intellectual
Property that is owned by the Company or any of its Subsidiaries; (iv) there is no pending
or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others
that the Company and its Subsidiaries infringe or otherwise violate any patent, trademark,
copyright, trade secret or other proprietary rights of others; (v) to the Company’s
knowledge, there is no third-party U.S. patent or published U.S. patent application which
contains claims for which an Interference Proceeding (as defined in 35 U.S.C. § 135)
has been commenced against any patent or patent application described in the Prospectus as
being owned by the Company; and (vi) the Company and its Subsidiaries have complied with
the terms of each agreement pursuant to which Intellectual Property has been licensed to
the Company or such Subsidiary, and all such agreements are in full force and effect, except,
in the case of each of clauses (i)-(vi) above, as would not, individually or in the aggregate,
result in a Material Adverse Effect.
(u) Market
Capitalization. At the time the Registration Statement was or will be originally
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 then applicable requirements
for the use of Form S-3 under the Securities Act, including, but not limited to, General
Instruction I.B.1 of Form S-3. 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 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.
(v) FINRA
Matters. The information provided to the Agents by the Company, its counsel, and its
officers and directors for purposes of the Agents’ compliance with applicable FINRA
rules in connection with the offering of the Placement Shares is true, complete, and correct
and compliant with FINRA’s rules.
(w) No Material
Defaults. Neither the Company nor any of the Subsidiaries 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, would 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, would reasonably be
expected to have a Material Adverse Effect.
(x) Certain
Market Activities. Neither the Company, nor any of the Subsidiaries, nor,
to the knowledge of the Company, any of their respective 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.
(y) Broker/Dealer
Relationships. Neither the Company nor any of the Subsidiaries (i) is
required to register as a “broker” or “dealer” in accordance with
the provisions of the Exchange Act or (ii) directly or indirectly through one or more
intermediaries, controls or is a “person associated with a member” or “associated
person of a member” (within the meaning set forth in the FINRA Manual).
(z) No Reliance. The
Company has not relied upon the Agents or legal counsel for the Agents for any legal, tax
or accounting advice in connection with the offering and sale of the Placement Shares.
(aa) Taxes. The
Company and each of its Subsidiaries have filed all federal, state, local and foreign tax
returns which have been required to be filed and paid all taxes shown thereon through the
date hereof, to the extent that such taxes have become due and are not being contested in
good faith, except where the failure to so file or pay would not have a Material Adverse
Effect. Except as otherwise disclosed in or contemplated by the Registration Statement
or the Prospectus, no tax deficiency has been determined adversely to the Company or any
of its Subsidiaries which has had, or would reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect. The Company has no knowledge of
any federal, state or other governmental tax deficiency, penalty or assessment which has
been or might be asserted or threatened against it which would have a Material Adverse Effect.
(bb) Title
to Real and Personal Property. Except as set forth in the Registration Statement
or the Prospectus, the Company and its Subsidiaries have good and marketable title in fee
simple or other comparable valid title to all items of real property owned by
them, good and valid title to all personal property described in the Registration Statement
or Prospectus as being owned by them that are material to the ordinary course of business
of the Company or the Subsidiaries, in each case free and clear of all liens, encumbrances
and claims, except those matters that (i) do not materially interfere with the use made and
proposed to be made of such property by the Company and any of its Subsidiaries or (ii) would
not reasonably be expected, individually or in the aggregate, to have a Material Adverse
Effect. Any real or personal property described in the Registration Statement
or Prospectus as being leased by the Company and any of its Subsidiaries is held by them
under valid, existing and enforceable leases, except those that (A) do not materially interfere
with the use made or proposed to be made of such property by the Company or any of its Subsidiaries
or (B) would not be reasonably expected, individually or in the aggregate, to have a Material
Adverse Effect. To the best of the Company’s knowledge, each of the properties
of the Company and its Subsidiaries complies with all applicable codes, laws and regulations
(including, without limitation, building and zoning codes, laws and regulations and laws
relating to access to
such
properties), except if and to the extent disclosed in the Registration Statement or Prospectus or except for such failures to comply
that would not, individually or in the aggregate, reasonably be expected to interfere in any material respect with the use made and proposed
to be made of such property by the Company and its Subsidiaries or otherwise have a Material Adverse Effect. None of the Company
or its Subsidiaries has received from any Governmental Authorities any notice of any condemnation of, or zoning change affecting, the
properties of the Company and its Subsidiaries, and the Company knows of no such condemnation or zoning change which is threatened, except
for such that would not reasonably be expected to interfere in any material respect with the use made and proposed to be made of such
property by the Company and its Subsidiaries or otherwise have a Material Adverse Effect, individually or in the aggregate.
(cc) Environmental
Laws. Except as set forth in the Registration Statement or the Prospectus,
the Company and its Subsidiaries (i) are in compliance with any and all applicable federal,
state, local and foreign laws, rules, regulations, decisions and orders relating to the protection
of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants
or contaminants (collectively, “Environmental Laws”); (ii) have
received and are in compliance with all permits, licenses or other approvals required of
them under applicable Environmental Laws to conduct their respective businesses as described
in the Registration Statement and the Prospectus; and (iii) have 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,
in the case of any of clauses (i), (ii) or (iii) above, for any such failure to comply or
failure to receive required permits, licenses, other approvals or liability as would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(dd) Disclosure
Controls. The Company and each of its Subsidiaries maintain systems of internal
accounting controls sufficient to provide reasonable assurance that (i) transactions
are executed in accordance with management’s general or specific authorizations; (ii) transactions
are recorded as necessary to permit preparation of financial statements in conformity with
GAAP and to maintain asset accountability; (iii) access to assets is permitted only
in accordance with management’s general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences. As of the end
of the Company’s most recently completed fiscal year, the Company’s internal
control over financial reporting was effective and as of the end of the most recently completed
fiscal year, the Company is not aware of any material weaknesses in its internal control
over financial reporting (other than as set forth in the Prospectus). Since the
date of the latest audited financial statements of the Company included in the Prospectus,
there has been no change in the Company’s internal control over financial reporting
that has materially affected, or is reasonably likely to materially affect, the Company’s
internal control over financial reporting (other than as set forth in the Prospectus). The
Company has established disclosure controls and procedures (as defined in Exchange Act Rules
13a-15 and 15d-15) for the Company and designed such disclosure controls and procedures to
ensure that material information relating to the Company and each of its Subsidiaries is
made known to the certifying officers by others within those entities, including during the
period in which the Company’s Annual Report on Form 10-K or Quarterly Report on Form
10-Q, as the case may be, is being prepared. The Company’s certifying officers
have evaluated the effectiveness of the Company’s disclosure controls and procedures
as of a date within 90 days prior to the filing date of the Annual Report on Form 10-K for
the fiscal year most recently ended (such date, the “Evaluation Date”). The
Company
presented
in its Annual Report on Form 10-K for the fiscal year most recently ended the conclusions of the certifying officers about the effectiveness
of the disclosure controls and procedures based on their evaluations as of the Evaluation Date and the disclosure controls and procedures
were effective. Since the Evaluation Date, there have been no significant changes in the Company’s internal controls
(as such term is defined in Item 307(b) of Regulation S-K under the Securities Act) or, to the Company’s knowledge, in other factors
that could significantly affect the Company’s internal controls.
(ee) Sarbanes-Oxley. There
is and has been no failure on the part of the Company or any of the Company’s directors
or officers, in their capacities as such, to comply in all material respects with any applicable
provisions of the Sarbanes-Oxley Act and the rules and regulations promulgated thereunder. Each
of the principal executive officer and the principal financial officer of the Company (or
each former principal executive officer of the Company and each former principal financial
officer of the Company as applicable) 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. 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.
(ff) Finder’s
Fees. Neither the Company nor any of the Subsidiaries has 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 Agents
pursuant to this Agreement.
(gg) Labor
Disputes. No labor disturbance by or dispute with employees of the Company
or any of its Subsidiaries exists or, to the knowledge of the Company, is threatened which
would reasonably be expected to result in a Material Adverse Effect.
(hh) Investment
Company Act. The Company is not and, after giving effect to the offering and
sale of the Placement Shares and the application of the proceeds thereof, will not be an
“investment company” as such term is defined in the Investment Company Act of
1940, as amended (the “Investment Company Act”). The Company shall
conduct its business in a manner so that it will not become required to register as an “investment
company,” as such term is defined in the Investment Company Act.
(ii) Operations. The
operations of the Company and its Subsidiaries are and have been conducted at all times in
compliance in all material respects 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 applicable jurisdictions to which the Company or its
Subsidiaries are subject, the applicable rules and regulations thereunder and any applicable
related or similar rules, regulations or guidelines, issued, administered or enforced by
any Governmental Authority (collectively, the “Money Laundering Laws”);
and no action, suit or proceeding by or before any Governmental Authority involving the Company
or any of its Subsidiaries with respect to the Money Laundering Laws is pending or, to the
knowledge of the Company, threatened.
(jj) 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 structured 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.
(kk) Underwriter
Agreements. The Company is not a party to any agreement with an agent or underwriter
for any other “at the market” or continuous equity transaction.
(ll) ERISA. To
the knowledge of the Company, each material employee benefit plan, within the meaning of
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”),
that is maintained, administered or contributed to by the Company or any of its Subsidiaries
for employees or former employees of the Company and any of its Subsidiaries has been maintained
in material compliance with its terms and the requirements of any applicable statutes, orders,
rules and regulations, including but not limited to ERISA and the Internal Revenue Code of
1986, as amended (the “Code”); no prohibited transaction, within
the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred which would
result in a material liability to the Company with respect to any such plan excluding transactions
effected pursuant to a statutory or administrative exemption; and for each such plan that
is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA, no “accumulated
funding deficiency” as defined in Section 412 of the Code has been incurred, whether
or not waived, and the fair market value of the assets of each such plan (excluding for these
purposes accrued but unpaid contributions) exceeds the present value of all benefits accrued
under such plan determined using reasonable actuarial assumptions.
(mm) 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.
(nn) Agent
Purchases. The Company acknowledges and agrees that the Agents have informed
the Company that each Agent may, to the extent permitted under the Securities Act and the
Exchange Act, purchase and sell Preferred Stock for its own account while this Agreement
is in effect, provided, that the Company shall not be deemed to have authorized or
consented to any such purchases or sales by such Agent.
(oo) 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 or any other regulation of such Board of Governors.
(pp) Insurance. Except
as would not reasonably be expected to have a Material Adverse Effect, the Company and each
of its Subsidiaries carry, or are covered by, insurance in such amounts and covering such
risks as the Company and each of its Subsidiaries reasonably believe are adequate for the
conduct of their properties and as is customary for companies engaged in similar businesses
in similar industries.
(qq) No Improper
Practices. (i) Neither the Company nor the Subsidiaries, nor any director
or officer of the Company or any Subsidiary nor, to the Company’s knowledge, any employee,
agent, affiliate or other person acting on behalf of the Company or any Subsidiary 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 applicable 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 applicable 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 any Subsidiary or,
to the Company’s knowledge, any affiliate of any of them, on the one hand, and the
directors, officers and stockholders of the Company or any Subsidiary, on the other hand,
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, any Subsidiary or, to the knowledge of the Company,
any affiliate of them, on the one hand, and the directors, officers or stockholders of the
Company or any Subsidiary, on the other hand, that is required by the rules of FINRA to be
described in the Registration Statement and the Prospectus that is not so described; (iv) except
as described in the Registration Statement and the Prospectus, there are no material outstanding
loans or advances or material guarantees of indebtedness by the Company or any Subsidiary
to or for the benefit of any of their respective officers or directors or any of the members
of the families of any of them; and (v) the Company has not offered, or caused any placement
agent to offer, Preferred Stock to any person with the intent to influence unlawfully (A) a
customer or supplier of the Company or any Subsidiary to alter the customer’s or supplier’s
level or type of business with the Company or any Subsidiary or (B) a trade journalist
or publication to write or publish favorable information about the Company or any Subsidiary
or any of their respective products or services, and, (vi) neither the Company nor any Subsidiary
nor any director, officer or employee of the Company or any Subsidiary nor, to the Company’s
knowledge, any agent, affiliate or other person acting on behalf of the Company or any Subsidiary
has (A) violated or is in violation of any applicable provision of the U.S. Foreign Corrupt
Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption
law (collectively, “Anti-Corruption Laws”), (B) promised, offered,
provided, attempted to provide or authorized the provision of anything of value, directly
or indirectly, to any person for the purpose of obtaining or retaining business, influencing
any act or decision of the recipient, or securing any improper advantage; or (C) made any
payment of funds of the Company or any Subsidiary or received or retained any funds in violation
of any Anti-Corruption Laws.
(rr) Status
Under the Securities Act. The Company was not and is not an ineligible issuer
as defined in Rule 405 under the Securities Act at the times specified in Rules 164 and 433
under the Securities Act in connection with the offering of the Placement Shares.
(ss) No
Misstatement or Omission in an Issuer Free Writing Prospectus. Each Issuer Free Writing
Prospectus, as of its issue date and as of each Applicable Time (as defined in Section
24 below), did not, does not and will not, through the completion of the Placement for
which such Issuer Free Writing Prospectus is used or deemed used, include any information
that conflicted, conflicts or will conflict with the information contained in the Registration
Statement or the Prospectus, including any incorporated document deemed to be a part thereof
that has not been superseded or modified. 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 Agents specifically for use
therein.
(tt) 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 and therein, nor the compliance by the Company with the terms and provisions hereof
and thereof 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 individually or in the aggregate, reasonably be expected
to have 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 violation
of the provisions of any statute or any order, rule or regulation applicable to the Company
or of any Governmental Authority having jurisdiction over the Company other than, with respect
to this clause (y) only, any violation that would not have a Material Adverse Effect.
(uu) Sanctions. (i)
The Company represents that, neither the Company nor any of its Subsidiaries (collectively,
the “Entity”), nor any director or officer of the Company nor,
to the Company’s knowledge, any employee, agent, affiliate or representative of the
Company, is a government, individual, or entity (in this paragraph (uu), “Person”)
that is, or is owned or controlled by a Person that is:
(A) the
subject of any sanctions administered or enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”),
the United Nations Security Council, the European Union, His Majesty’s Treasury, or other relevant sanctions authorities, including,
without limitation, designation on OFAC’s Specially Designated Nationals and Blocked Persons List or OFAC’s Foreign Sanctions
Evaders List (as amended, collectively, “Sanctions”), nor
(B) located,
organized or resident in a country or territory that is the subject of Sanctions that broadly prohibit dealings with that country or
territory (including, without limitation, Cuba, Iran, North Korea, Syria, the so-called Donetsk People’s Republic, the so-called
Luhansk People’s Republic and the Crimea Region of Ukraine) (the “Sanctioned Countries”).
(ii) The
Company represents and covenants that the Entity will not, directly or indirectly, use the proceeds of the offering, or lend, contribute
or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to
fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding
or facilitation, is the subject of Sanctions or is a Sanctioned Country; or
(B) in
any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether
as underwriter, advisor, investor or otherwise).
(iii) The
Company represents and covenants that, except as detailed in the Registration Statement and the Prospectus, since April 24, 2019, the
Entity has not engaged in, is not now knowingly engaging in, and will not knowingly engage 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 or is or was
a Sanctioned Country.
(vv) 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 complied with
in all material respects.
(ww) Compliance
with Laws. The Company and each of its Subsidiaries are in material compliance
with all applicable laws, regulations and statutes (including all Environmental Laws and
regulations) in the jurisdictions in which it carries on business; the Company has not, to
the Company’s knowledge, received a notice of non-compliance, nor knows of, nor has
reasonable grounds to know of, any facts that could give rise to a notice of non-compliance
with any such laws, regulations and statutes, and is not aware of any pending change or contemplated
change to any such applicable law or regulation or statutes; in each case that would reasonably
be expected to have a Material Adverse Effect on the business of the Company or the business
or legal environment under which the Company operates.
(xx) Statistical
and Market-Related Data. The statistical, demographic and market-related data
included in the Registration Statement and Prospectus are based on or derived from sources
that the Company believes to be reliable and accurate or represent the Company’s good
faith estimates that are made on the basis of data derived from such sources.
(yy) Cybersecurity.
Except as disclosed in the Registration Statement or Prospectus, and except as would not,
individually or in the aggregate, have a Material Adverse Effect, (i) the Company and its
Subsidiaries’ information technology assets and equipment, computers, systems, networks,
hardware, software, websites, applications, and databases (collectively, “IT
Systems”) are adequate for, and operate and perform in all material respects
as required in connection with the operation of the business of the Company as currently
conducted, free and clear of all material bugs, errors, defects, Trojan horses, time bombs,
malware and other corruptants; (ii) the Company and its Subsidiaries have implemented and
maintained commercially reasonable physical, technical and administrative controls, policies,
procedures, and safeguards to maintain and protect their material confidential information
and the integrity, continuous operation, redundancy and security of all IT Systems and data,
including all “Personal Data” (as defined below) and all sensitive, confidential
or regulated data (“Confidential Data”) used in connection with
their businesses; and (iii) there have been no breaches, violations, outages or unauthorized
uses of or accesses to the same, except for those that have been remedied without material
cost or liability or the duty to notify any other person, nor are any incidents under internal
review or investigation by the Company or any of its Subsidiaries relating to the same. “Personal
Data” means (A) a natural person’s name, street address, telephone number,
e-mail address, photograph, social security
number
or tax identification number, driver’s license number, passport number, credit card number, bank information, or customer or account
number; (B) any information which qualifies as “personally identifying information” under the Federal Trade Commission Act,
as amended; (iii) “personal data” as defined by the European Union General Data Protection Regulation (“GDPR”)
(EU 2016/679); (iv) any information which qualifies as “protected health information” under the Health Insurance Portability
and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act (collectively, “HIPAA”);
(v) any “personal information” as defined by the California Consumer Privacy Act (“CCPA”); and
(vi) any other piece of information that allows the identification of such natural person.
(zz) Compliance
with Data Privacy Laws. Except as disclosed in the Registration Statement or Prospectus,
and except as would not, individually or in the aggregate, have a Material Adverse Effect,
(i) the Company and its Subsidiaries are in material compliance with all applicable state
and federal data privacy and security laws and regulations, including, without limitation,
to the extent applicable, HIPAA, CCPA, and the GDPR (collectively, the “Privacy
Laws”); (ii) the Company has in place, complies with, and takes appropriate
steps to ensure compliance in all material respects with, its policies and procedures relating
to data privacy and security and the collection, storage, use, processing, disclosure, handling,
and analysis of Personal Data and Confidential Data (the “Policies”);
(iii) the Company has made all disclosures to users or customers required by Privacy Laws,
and none of such disclosures made or contained in any Policy have been inaccurate or in violation
of any Privacy Laws in any material respect; and (iv) neither the Company nor any Subsidiary
of the Company has received written notice of any actual or potential liability under or
relating to, or actual or potential violation of, any of the Privacy Laws.
(aaa) Emerging
Growth Company Status. From the time of the initial filing of the Company’s
first registration statement with the Commission through the date hereof, the Company has
been and is an “emerging growth company,” as defined in Section 2(a) of the Securities
Act (an “Emerging Growth Company”).
(bbb) Smaller
Reporting Company. As of the time of filing of the Registration Statement,
the Company was a “smaller reporting company,” as defined in Rule 12b-2 of the
Exchange Act.
(ccc) Fast-Pay
Stock. The Company has made reasonable best efforts to comply and believes that it has
complied with the written guidelines agreed to by the Company and the Agents with respect
to “fast-pay stock” (the “Fast-Pay Stock Guidelines”)
(for the avoidance of doubt, the Company may take into account written or oral representations
from the Agents in determining that it has fulfilled the Fast-Pay Stock Guidelines) and does
not believe that the Placement Shares to be sold pursuant to this Agreement are structured
in a manner that causes the Placement Shares to be treated as “fast-pay stock”
within the meaning of Section 1.7701(l)-3(b)(2) of the United States Treasury Regulations.
Any
certificate signed by an officer of the Company and delivered to the Agents or to counsel for the Agents pursuant to or in connection
with this Agreement shall be deemed to be a representation and warranty by the Company, as applicable, to the Agents as to the matters
set forth therein.
7. Covenants
of the Company. The Company covenants and agrees with the Agents 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 the
Agents under the Securities Act (including in circumstances where such requirement may be
satisfied pursuant to Rule 172 under the Securities Act or similar rule), (i) the Company
will notify the Agents promptly of the time when any subsequent amendment to the Registration
Statement, other than documents incorporated by reference, 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 the Prospectus or for additional information, (ii) the Company will prepare
and file with the Commission, promptly upon the Agents’ request, any amendments or
supplements to the Registration Statement or the Prospectus that, in the Agents’ reasonable
opinion, may be necessary or advisable in connection with the distribution of the Placement
Shares by the Agents (provided, however, that (A) the failure of the Agents
to make such request shall not relieve the Company of any obligation or liability hereunder,
or affect the Agents’ right to rely on the representations and warranties made by the
Company in this Agreement, (B) the Company has no obligation to provide the Agents any advance
copy of such filing or to provide the Agents an opportunity to object to such filing if the
filing does not name the Agents and does not relate to a Placement or other transaction contemplated
hereunder, and (C) the only remedy the Agents 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 the Prospectus relating to the Placement Shares or a security convertible into
the Placement Shares unless a copy thereof has been submitted to the Agents within a reasonable
period of time before the filing and the Agents have not objected thereto in good faith and
with reasonable grounds (provided, however, that the failure of the Agents
to make such objection shall not relieve the Company of any obligation or liability hereunder,
or affect the Agents’ right to rely on the representations and warranties made by the
Company in this Agreement and provided, further, that the only remedy the Agents
shall have with respect to the failure by the Company to obtain such consent shall be to
cease making sales under this Agreement) and the Company will furnish to the Agents 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 the Prospectus, except for those documents
available via EDGAR; and (iv) the Company will cause each amendment or supplement to
the Prospectus relating to the Placement Shares 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).
(b) Notice
of Commission Stop Orders. The Company will advise the Agents, 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 Agents 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 any period in which a Prospectus
relating to the Placement Shares is required to be delivered by the Agents under the Securities
Act with respect to the offer and sale of the Placement Shares, (including in circumstances
where such requirement may be satisfied pursuant to Rule 172 under the Securities Act or
similar rule), 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 430B under the Securities Act, it will use its best
efforts to comply with the provisions of and make all requisite filings with the Commission
pursuant to said Rule 430B and to notify the Agents promptly of all such filings relating
to the Placement Shares. If during such period (i) 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 (ii) for any other reason
it shall be necessary during such same period to amend or supplement the Prospectus, to file
any post-effective amendment to the Registration Statement or to file under the Exchange
Act any document incorporated by reference in the Prospectus in order to comply with the
Securities Act or the Exchange Act, the Company will promptly notify the Agents to suspend
the offering of Placement Shares during such period and the Company will promptly amend or
supplement the Registration Statement or the 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 any such amendment or supplement if, in the reasonable judgment of
the Company, it is in the best interests of the Company to do so. Until such time as the
Company shall have corrected such misstatement or omission or effected such compliance, the
Company shall not notify the Agents to resume the offering of Placement Shares.
(d) Listing
of Placement Shares. (i) The Company will maintain the listing of the
Placement Shares on the Exchange; and (ii) the Company will reserve and keep available
at all times, free of preemptive rights, Placement Shares for the purpose of enabling the
Company to satisfy its obligations pursuant to an outstanding Placement Notice under this
Agreement.
(e) Delivery
of Registration Statement and Prospectus. The Company will furnish to the
Agents and their counsel (at the 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 any period in which a Prospectus relating to the Placement Shares is required to be
delivered under the Securities Act (including all documents filed with the Commission during
such period that are deemed to be incorporated by reference therein), in each case as soon
as reasonably practicable and in such quantities as the Agents may from time to time reasonably
request and, at the Agents’ reasonable request, will also furnish copies of the Prospectus
to each exchange or market on which sales of the Placement Shares may be made; provided,
however, that the Company shall not be
required
to furnish any document (other than the Prospectus) to the Agents to the extent such document is available on EDGAR.
(f) Earning
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 earning statement (which need not be audited) covering a 12-month
period that satisfies the provisions of Section 11(a) and Rule 158 of the Securities Act;
provided that the Company will be deemed to have made available such statement to
its security holders at the time and to the extent it is available 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 Agents, the Company
will not, directly or indirectly, offer to sell, sell, contract to sell, grant any option
to sell or otherwise dispose of any Preferred Stock (other than the Placement Shares offered
pursuant to this Agreement) or securities convertible into or exchangeable for Preferred
Stock, warrants or any rights to purchase or acquire, Preferred Stock during the period beginning
on the fifth (5th) Trading Day immediately prior to the date on which any Placement
Notice is delivered to Agents hereunder and ending on the fifth (5th) Trading
Day 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
suspension or termination); 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 Preferred Stock (other than the Placement
Shares offered pursuant to this Agreement) or securities convertible into or exchangeable
for Preferred Stock, warrants or any rights to purchase or acquire, Preferred Stock prior
to the sixtieth (60th) day immediately following the termination of this Agreement.
(i) Change
of Circumstances. The Company will, at any time during the pendency of a Placement
Notice, advise the Agents 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 Agents pursuant
to this Agreement.
(j) Due
Diligence Cooperation. The Company will cooperate with any reasonable due
diligence review conducted by the Agents or their 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 Agents may reasonably request.
(k) Required
Filings Relating to Placement of Placement Shares. The Company shall disclose,
in its Quarterly Reports on Form 10-Q and in its Annual Report on Form 10-K to be filed by
the Company with the Commission from time to time, the number of the Placement Shares sold
through the Agents under this Agreement, and the net proceeds to the Company from the sale
of the Placement Shares pursuant to this Agreement during the relevant quarter or, in the
case of an Annual Report on Form 10-K, during the fiscal year covered by such Annual Report
and the fourth quarter of such fiscal year. The Company agrees that on such dates as the
Securities Act shall
require
the filing of a prospectus supplement with respect to the sale of Placement Shares hereunder, 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 date 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 Agents, the Net Proceeds to the Company and the compensation payable by the Company to the
Agents 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. (1) Prior to the date of the first Placement Notice and
(2) following delivery of the first Placement Notice, each time the Company:
(i)
files the Prospectus relating to the Placement Shares (other than as part of any filing prior to the time of the initial effectiveness
of the Registration Statement) 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 Annual Report on Form 10-K/A containing amended or restated
financial information or a material amendment to the previously filed Annual Report on Form 10-K);
(iii)
files its Quarterly Reports on Form 10-Q under the Exchange Act; or
(iv)
files a Current Report on Form 8-K containing amended financial information relating to the Company (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) shall be a “Representation
Date”);
the
Company shall furnish the Agents (but in the case of clause (iv) above only if the Agents reasonably determine that the information contained
in such Current Report on Form 8-K is material) with a certificate dated the Representation Date, in the form and substance satisfactory
to the Agents and their counsel, substantially similar to the form previously provided to the Agents and their counsel, modified, as
necessary, to relate to the Registration Statement and the Prospectus as amended or supplemented. The requirement to provide
a certificate under this Section 7(l) shall be automatically waived for any Representation Date occurring at a time when no Placement
Notice is outstanding or a Suspension is in effect, which waiver shall continue until the earlier to occur of the date the Company delivers
a Placement Notice hereunder or instructions for the sale of Placement Shares under a suspended Placement Notice (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 a waiver or a
Suspension was in
effect
and did not provide the Agents with a certificate under this Section 7(l), then before the Company delivers the instructions for
the sale of Placement Shares or the Agents sell any Placement Shares pursuant to such instructions, the Company shall provide the Agents
with a certificate in conformity with this Section 7(l) dated as of the date of the Placement Notice or the date that the instructions
for the sale of Placement Shares are issued, as applicable.
(m) Legal
Opinion. (1) On or prior to the date of the first Placement Notice and (2)
within five (5) Trading Days of each Representation Date with respect to which the Company
is obligated to deliver a certificate pursuant to Section 7(l) for which no waiver
is applicable and excluding the date of this Agreement, the Company shall cause to be furnished
to the Agents (i) a written opinion and negative assurance letter of Davis Polk & Wardwell
LLP, as counsel to the Company and (ii) a written opinion of Brownstein Hyatt Farber Schreck,
LLP, as Nevada counsel to the Company or other counsel satisfactory to the Agents, each in
form and substance reasonably satisfactory to the Agents and their counsel, substantially
similar to the forms previously provided to the Agents and their counsel, modified, as necessary,
to relate to the Registration Statement and the Prospectus as then amended or supplemented;
provided, that in lieu of such opinions or negative assurance letters for subsequent
periodic filings under the Exchange Act, counsel may furnish the Agents with a letter (a
“Reliance Letter”) to the effect that the Agents may rely on a
prior opinion or negative assurance letter, as the case may be, 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 or negative assurance letter, as the case may be, 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. The Company shall cause (1) on or prior to the date of the first Placement
Notice, the Accountants and (2) within five (5) Trading Days of each Representation Date
with respect to which the Company is obligated to deliver a certificate pursuant to Section
7(l) for which no waiver is applicable and excluding the date of this Agreement, its
independent registered public accounting firm to furnish the Agents letters (the “Comfort
Letters”), dated the date the Comfort Letter is delivered, which shall meet
the requirements set forth in this Section 7(n); provided, that if reasonably
requested by the Agents, the Company shall cause a Comfort Letter to be furnished to the
Agents within ten (10) Trading Days after the date of occurrence of any material transaction
or event requiring the filing of a Current Report on Form 8-K containing financial information
( including the restatement of the Company’s financial statements). The
Comfort Letters shall be in a form and substance satisfactory to the Agents, (i) confirming
that they are an independent registered public accounting firm (and any other independent
accountants whose report is included in or incorporated by reference into the Registration
Statement or Prospectus) within the meaning of the Securities Act and the Public Company
Accounting Oversight Board (“PCAOB”), (ii) stating, as of such
date, the conclusions and findings of such firm with respect to the financial information
and other matters ordinarily covered by accountants’ “comfort letters”
to underwriters in connection with registered public offerings (the first such letter, the
“Initial Comfort Letter”) and (iii) updating the Initial Comfort
Letter with any information that would have been included in the Initial Comfort Letter had
it been given on such date and modified as necessary to relate to the Registration Statement
and the Prospectus, as amended and supplemented to the date of such letter.
(o) Market
Activities; Compliance with Regulation M. 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 Preferred
Stock or (ii) sell, bid for, or purchase Preferred Stock in violation of Regulation M, or pay anyone any compensation for soliciting
purchases of the Placement Shares other than the Agents.
(p) Investment
Company Act. The Company will conduct its affairs in such a manner so as to
reasonably ensure that neither it nor any of its Subsidiaries will be or become, at any time
prior to the termination of this Agreement, required to register as an “investment
company,” as such term is defined in the Investment Company Act.
(q) No Offer
to Sell. Other than an Issuer Free Writing Prospectus approved in advance
by the Company and the Agents in their capacity as Agents hereunder, neither the Agents nor
the Company (including its agents and representatives, other than the Agents in their 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.
(r) Blue
Sky and Other Qualifications. The Company will use its commercially
reasonable efforts, in cooperation with the Agents, to qualify the Placement Shares for offering
and sale, or to obtain an exemption for the Placement Shares to be offered and sold, under
the applicable securities laws of such states and other jurisdictions (domestic or foreign)
as the Agents may designate and to maintain such qualifications and exemptions in effect
for so long as required for the distribution of the Placement Shares (but in no event for
less than one year from the date of this Agreement); provided, however, that
the Company shall not be obligated to file any general consent to service of process or to
qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which
it is not so qualified or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. In each jurisdiction in
which the Placement Shares have been so qualified or exempt, the Company will file such statements
and reports as may be required by the laws of such jurisdiction to continue such qualification
or exemption, as the case may be, in effect for so long as required for the distribution
of the Placement Shares (but in no event for less than one year from the date of this Agreement).
(s) Sarbanes-Oxley
Act. The Company and the Subsidiaries will maintain and keep accurate books
and records reflecting their 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) 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 and the
Subsidiaries will maintain such controls and other procedures, including, without limitation,
those required by Sections 302 and 906 of the Sarbanes-Oxley Act, and the applicable regulations
thereunder that are designed to ensure that information required to be disclosed by the Company
in
the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods
specified in the Commission’s rules and forms, including, without limitation, controls and procedures designed to ensure that information
required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated
to the Company’s management, including its principal executive officer and principal financial officer, or persons performing similar
functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to
the Company or the Subsidiaries is made known to them by others within those entities, particularly during the period in which such periodic
reports are being prepared.
(t) Secretary’s
Certificate; Further Documentation. On or prior to the date of the first Placement
Notice, the Company shall deliver to the Agents a certificate of the Secretary of the Company
and attested to by an executive officer of the Company, dated as of such date, certifying
as to (i) the Articles of Incorporation of the Company, (ii) the Bylaws of the Company, (iii)
the resolutions of the Board of Directors of the Company, or a duly authorized committee
of the Board of Directors, authorizing the execution, delivery and performance of this Agreement
and the issuance of the Placement Shares and (iv) the incumbency of the officers duly authorized
to execute this Agreement and the other documents contemplated by this Agreement. Within
five (5) Trading Days of each Representation Date, the Company shall have furnished to the
Agents such further information, certificates and documents as the Agents may reasonably
request.
(u) Emerging
Growth Company Status. The Company will promptly notify the Agents if the
Company ceases to be an Emerging Growth Company at any time during the term of this Agreement.
8. Payment of Expenses. The
Company will pay all expenses incident to the performance of its obligations under this Agreement, including (i) the preparation
and filing of the Registration Statement, including any fees required by the Commission, and the printing or electronic delivery of the
Prospectus as originally filed and of each amendment and supplement thereto relating to the Placement Shares, in such number as the Agents
shall deem necessary, (ii) the printing and delivery to the Agents 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 Agents, 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 Agents, (iv) the
fees and disbursements of the counsel, accountants and other advisors to the Company, (v) the reasonable and documented fees and
expenses of the Agents including but not limited to the fees and expenses of counsel to the Agents, payable upon the execution of this
Agreement, (a) in an amount not to exceed $125,000 in connection with the execution of this Agreement, (b) in an amount not to exceed
$25,000 per calendar quarter thereafter payable in connection with each Representation Date with respect to which the Company is obligated
to deliver a certificate pursuant to Section 7(l) for which no waiver is applicable and excluding the date of this Agreement,
and (c) in an amount not to exceed $40,000 for each program “refresh” (filing of a new registration statement, prospectus
or prospectus supplement relating to the Placement Shares and/or an amendment of this Agreement) executed pursuant to this Agreement,
(vi) the qualification or exemption of the Placement Shares under state securities laws in accordance with the provisions of Section 7(r)
hereof, including filing fees, but excluding fees of the Agents’ counsel, (vii) the printing and
delivery
to the Agents of copies of any Permitted Issuer Free Writing Prospectus and the Prospectus and any amendments or supplements thereto
relating to the Placement Shares in such number as the Agents shall deem necessary, (viii) the preparation, printing and delivery
to the Agents of copies of the blue sky survey, (ix) the fees and expenses of the transfer agent and registrar for the Preferred
Stock, (x) the filing and other fees incident to any review by FINRA of the terms of the sale of the Placement Shares including
the reasonable and documented fees of the Agents’ counsel (subject to the cap, set forth in clause (v) above), and (xi) the
fees and expenses incurred in connection with the listing of the Placement Shares on the Exchange. The Company agrees to pay the reasonable
fees and expenses of counsel to the Agents set forth in clause (v) above by wire transfer of immediately available funds directly to
such counsel upon presentation of an invoice containing the requisite payment information prepared by such counsel, and such counsel
shall be a third-party beneficiary of the expense reimbursement obligations set forth in this Section 8.
9. Fast Pay Stock. In
connection with any offerings of Preferred Stock (for this purpose, including (i) each sale of Preferred Stock pursuant to this
Agreement; (ii) each future sale of the Preferred Stock pursuant to any future at-the-market sales program or otherwise
and (iii) any Preferred Stock acquired and then resold by the Company or any of its Subsidiaries) (each, a “Future Offering”),
the Company will use its reasonable best efforts (which shall include obtaining advice from a qualified external tax advisor) to cause
the Preferred Stock to be structured in a manner that is intended to cause the Preferred Stock not to be treated as “fast-pay stock”
within the meaning of Section 1.7701(l)-3(b)(2) of the United States Treasury Regulations. For the avoidance of doubt, fulfilling the
Fast-Pay Stock Guidelines with respect to such Future Offerings (as such Fast-Pay Stock Guidelines may be updated by the Company and
the Agents (and any other financial institutions that are parties to any Future Offering) from time to time) will be deemed sufficient
to meet the Company’s obligations under this provision. The Company and the Agents further agree and acknowledge that the Company
may take into account written or oral representations from one or more nationally recognized financial institutions participating in
such offering in determining that it has fulfilled the Fast-Pay Stock Guidelines.
If
the Company makes any filing (including a protective filing) (the “Filing”) pursuant to Section 1.6011-4 of
the United States Treasury Regulations (or any successor or similar or related regulation, including similar state or local tax regulations)
to the effect that it has (or may have, in the case of a protective Filing) issued “fast-pay stock” with respect to any Preferred
Stock sold by the Company in Future Offerings, the Company shall (A) announce such Filing by, at the Company’s option, (i) a press
release through a major news service, (ii) publication on the Company’s investor relations website, or (iii) filing a Current Report
on Form 8-K with the Commission (or provide similar notice to holders of the Preferred Stock), in each case, within four business days
of the Filing and (B) use reasonable best efforts to promptly provide written advance notice (and in any event no later than 10 business
days in advance of the Filing) to any potential “material advisors” (within the meaning of Section 6111 of the Code) in connection
with the Filing. The Company further agrees and covenants that if the Company receives any notice of any governmental audit, assessment,
claim, examination or other governmental inquiry relating to the tax treatment of any Preferred Stock sold by the Company in Future Offerings
being “fast-pay stock” (a “Tax Claim”) it shall use reasonable best efforts to promptly provide
written notice to the Agents and any potential “material advisors” (within the meaning of Section 6111 of the Code) in connection
with such Tax Claim.
10. Conditions
to the Agents’ Obligations. The obligations of the Agents 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, to the due performance in
all material respects by the Company of its obligations hereunder, to the completion by the
Agents of a due diligence review satisfactory to them in their reasonable judgment, and to
the continuing satisfaction (or waiver by the Agents in their sole discretion) of the following
additional conditions:
(a) Registration
Statement Effective. The Registration Statement shall have become effective
and shall be available for the (i) resale of all Placement Shares issued to the Agents
and not yet sold by the Agents and (ii) 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 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 the initiation or threatening of any proceeding for such purpose;
or (iv) the occurrence of any event that makes any statement of a material fact made
in the Registration Statement or the Prospectus or any document incorporated or deemed to
be incorporated therein by reference untrue or that requires the making of any changes in
the Registration Statement, the Prospectus or any such documents so that, in the case of
the Registration Statement, it will not contain an untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary in order to make
the statements therein not misleading and, that in the case of the Prospectus, it will not
contain an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(c) No Misstatement
or Material Omission. The Agents 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 Agents’ reasonable opinion is material, or omits
to state a fact that in the Agents’ 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 Registration Statement or the Prospectus,
or disclosed in the Company’s reports filed with the Commission, there shall not have
been any material adverse change in the authorized capital stock of the Company or any Material
Adverse Effect or any development that would 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 Agents
(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
Opinions. The Agents shall have received the opinions and negative assurance
letters required to be delivered pursuant to Section 7(m) on or before the date on
which such delivery of such opinions and negative assurance letters, as applicable, is required
pursuant to Section 7(m), addressed to the Agents, each in form and substance reasonably
satisfactory to the Agents.
(f) Comfort
Letter. The Agents 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 Agents 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), in form and substance reasonably
satisfactory to the Agents.
(h) No Suspension. Trading
in the Preferred Stock shall not have been suspended on the Exchange and the Preferred Stock
shall not have been delisted from the Exchange.
(i) 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 Agents such appropriate
further information, opinions, certificates, letters and other documents as the Agents may
reasonably request. All such opinions, certificates, letters and other documents
will be in compliance with the provisions hereof.
(j) 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.
(k) Approval
for Listing. The Placement Shares shall either have been (i) approved for
listing on the Exchange, subject only to notice of issuance, or (ii) 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 and the Exchange shall have reviewed such application
and not provided any objections thereto.
(l) FINRA. If
applicable, FINRA shall have raised no objection to the terms of this offering and the amount
of compensation allowable or payable to the Agents as described in the Prospectus.
(m) No Termination
Event. There shall not have occurred any event that would permit the Agents
to terminate this Agreement pursuant to Section 13(a).
11. Indemnification
and Contribution.
(a) Company
Indemnification. The Company agrees to indemnify and hold harmless the Agents, its affiliates and their respective partners,
members, directors, officers, employees and agents and each person, if any, who controls such Agent or any affiliate 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 reasonably incurred 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 reasonably incurred 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 Authority, 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 11(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 reasonably incurred expense whatsoever, as incurred (including the reasonable and documented fees and disbursements of counsel),
reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any Governmental
Authority, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue
statement or omission (whether or not a party), 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 the
Agents’ Information.
(b) Agent
Indemnification. Each Agent agrees to indemnify and hold harmless the Company and its directors and each officer of the
Company who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and reasonably incurred expense
described in the indemnity contained in Section 11(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), the Prospectus, any Prospectus
Supplement (or any amendment or supplement thereto) or any Issuer Free Writing Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with information relating to such Agent and furnished to the Company in writing by such Agent expressly
for use therein. The Company hereby acknowledges that the only information that the Agents have 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 fifth paragraph and the eighth and ninth paragraphs
under the caption “Plan of Distribution” in the Sales Prospectus (the “Agents’ Information”).
(c) Procedure. Any
party that proposes to assert the right to be indemnified under this Section 11 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
11, 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 11 and (ii) any liability that it may have to any indemnified party under the foregoing
provision of this Section 11 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 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 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 or counsel reasonably satisfactory to the indemnified party, in each case, within a reasonable time after receiving
notice of the commencement of the action; in each of which cases the reasonable 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 fees, disbursements and
other charges of more than one separate firm (plus local counsel) admitted to practice in such jurisdiction at any one time for all such
indemnified party or parties. All such reasonably incurred fees, disbursements and other charges will be reimbursed by the
indemnifying party promptly as they are incurred. 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 11 (whether or not any indemnified party is a party thereto),
unless such settlement, compromise or consent (1) includes an express and unconditional release of each indemnified party, in form
and substance reasonably satisfactory to such 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.
(d) Settlement
Without Consent if Failure to Reimburse. If an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for reasonable fees and expenses of counsel, such indemnifying party agrees that it shall be liable for
any settlement of the nature contemplated by Section 11(a)(ii) effected without its written consent if (1) such settlement
is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (2) such indemnifying party
shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (3) such
indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) 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 11 is applicable in accordance with its terms but for any reason is held to be unavailable or insufficient from
the Company or an Agent, the Company and such 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) to which the Company and the Agents 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 Agents on the other hand. The relative benefits
received by the Company on the one hand and the Agents 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 Agents 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 such 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 such 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 each Agent agree that it would not be just and equitable if contributions pursuant to this Section 11(e) 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 11(e) shall be deemed to include, for the purpose of this Section
11(e), 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 11(c) hereof. Notwithstanding the foregoing provisions of
this Section 11(e), an 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 11(e), any person who controls a party to this Agreement within the meaning of the Securities Act, any affiliates
of an Agent and any officers, directors, partners, employees or agents of an Agent or any of its affiliates, will have the same rights
to contribution
as
that party, and each director of the Company 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 11(e), 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 11(e) 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 11(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 11(c) hereof.
12. Representations
and Agreements to Survive Delivery. The indemnity and contribution agreements
contained in Section 11 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 any Agent,
any controlling persons, or the Company (or any of their respective officers, directors,
employees or controlling persons), (ii) delivery and acceptance of the Placement Shares
and payment therefor or (iii) any termination of this Agreement.
13. Termination.
(a) Each Agent
may terminate this Agreement with respect to itself, by notice to the Company and the other
Agents, 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 change, or any development or event involving a prospective change, in the condition,
financial or otherwise, or in the business, properties, earnings, results of operations or
prospects of the Company and its Subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, which individually or in the aggregate, in the
sole judgment of such 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 such 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 Preferred 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 7(h) (Notice of Other Sales), Section 8 (Payment of Expenses),
Section 11 (Indemnification and Contribution), Section 12 (Representations
and Agreements to Survive
Delivery),
Section 18 (Governing Law and Time; Waiver of Jury Trial) and Section 19 (Consent to Jurisdiction) hereof shall remain
in full force and effect notwithstanding such termination. If an Agent elects to terminate this Agreement as provided in this
Section 13(a), such Agent shall provide the required notice as specified in Section 14 (Notices).
(b) The Company
shall have the right, by giving ten (10) days’ 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 7(h), Section 8, Section 11, Section 12,
Section 18 and Section 19 hereof shall remain in full force and effect notwithstanding
such termination. For the avoidance of doubt, the termination by the Company of this Agreement
with respect to one Agent pursuant to this Section 13(b) shall not affect the rights
and obligations of the other Agents under this Agreement.
(c) Each Agent
shall have the right, by giving ten (10) days’ 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 7(h), Section 8, Section 11, Section 12,
Section 18 and Section 19 hereof shall remain in full force and effect notwithstanding
such termination. For the avoidance of doubt, the termination by one Agent of its rights
and obligations under this Agreement pursuant to this Section 13(c) shall not affect
the rights and obligations of the other Agents under this Agreement.
(d) This Agreement
shall remain in full force and effect unless terminated pursuant to Sections 13(a),
(b), or (c) 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 7(h), Section 8, Section 11, Section 12,
Section 18 and Section 19 shall remain in full force and effect.
(e) 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 Agents 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.
14. 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 Agents, shall be delivered to:
Cantor
Fitzgerald & Co.
110 East 59th Street
New York, New York 10022
Attention: Capital Markets
Email:
and:
Cantor
Fitzgerald & Co.
110 East 59th Street
New York, New York 10022
Attention: General Counsel
Email:
and:
Barclays
Capital Inc.
745 Seventh Avenue
New York, New York 10019
Attention: Syndicate Registration
Fax:
With
a copy, in the case of any notice pursuant to Section 11(c), to:
Barclays
Capital Inc.
745 Seventh Avenue
New York, New York 10019
Attention: Director of Litigation, Office of the General Counsel
and:
Clear
Street LLC
4 World Trade Center, Floor 46
New York, New York 10007
and:
StoneX
Financial Inc.
230 Park Ave, 10th Floor
New York, New York 10169
and:
B.
Riley Securities, Inc.
299 Park Avenue, 21st Floor
New York, New York 10171
and:
Maxim
Group LLC
300 Park Avenue, 16th Floor
New York, New York 10022
and:
H.C.
Wainwright & Co., LLC
430 Park Avenue, 3rd Floor
New York, New York 10022
Email:
with a copy to:
DLA
Piper LLP (US)
1251
Avenue of the Americas
New
York, New York 10020
Attention: Stephen
P. Alicanti and Bianca J. LaCaille
Email:
and
if to the Company, shall be delivered to:
Strive,
Inc.
200 Crescent
Court
Suite 1400
Dallas,
Texas 75201
Attention:
Logan Beirne
E-mail:
with
a copy to:
Davis Polk
& Wardwell LLP
450 Lexington Avenue
New York, New York 10010
Attention: Derek Dostal
Emails:
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 verifiable
facsimile transmission (with an original to follow) 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) by Electronic Notice, as set forth below, (iii) on the next Business
Day after timely delivery to a nationally-recognized overnight courier and (iv) on the Business Day actually received if deposited
in the U.S. mail (certified or registered mail, return receipt requested, postage prepaid). For purposes of 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.
An
electronic communication (“Electronic Notice”) shall be deemed written notice for purposes of this Section
14 if sent to the electronic mail address specified by the receiving party under separate cover. Electronic Notice shall
be deemed received at the time the party sending Electronic Notice receives verification of receipt by the receiving party. Any
party receiving Electronic Notice may request and shall be entitled to receive the notice on paper, in a nonelectronic form (“Nonelectronic
Notice”) which shall be sent to the requesting party within ten (10) days of receipt of the written request for Nonelectronic
Notice.
15. Successors
and Assigns. This Agreement shall inure to the benefit of and be binding upon
the Company and each Agent and their respective successors and the parties referred to in
Section 11 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; provided,
however, that each Agent may assign its rights and obligations hereunder to an affiliate thereof without obtaining the Company’s
consent.
16. 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 dividend or similar event effected with respect to the Preferred Stock.
17. Entire
Agreement; Amendment; Severability; Waiver. This Agreement (including all
schedules and exhibits attached hereto and Placement Notices issued pursuant hereto, any
contemporaneous side letters and any prior engagement letters between the Company and any
of the Agents) 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 each Agent. No
waiver of any provision of this Agreement shall be effective unless in a written instrument
executed by the party against whom such waiver is to be effective. 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. No implied waiver by a party shall arise in the
absence of a waiver in writing signed by such party. No failure or delay in exercising any
right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise thereof preclude any other or further exercise thereof or the exercise
of any right, power, or privilege hereunder.
18. 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. EACH
PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY.
19. CONSENT
TO JURISDICTION. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION
OF THE STATE AND FEDERAL COURTS SITTING IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN, FOR
THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION 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.
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. Delivery
of an executed Agreement by one party to the other may be made by facsimile, electronic mail
(including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform
Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable
law, e.g., www.docusign.com) or other transmission method and any counterpart
so delivered shall be deemed to have been duly and validly delivered and be valid and effective
for all purposes.
21. Construction. The
section and exhibit headings herein are for convenience only and shall not affect the
construction hereof. References herein to any law, statute, ordinance, code, regulation,
rule or other requirement of any Governmental Authority shall be deemed to refer to such
law, statute, ordinance, code, regulation, rule or other requirement of any Governmental
Authority as amended, reenacted, supplemented or superseded in whole or in part and in effect
from time to time and also to all rules and regulations promulgated thereunder.
22. Permitted
Free Writing Prospectuses. The Company represents, warrants and agrees that,
unless it obtains the prior written consent of the Agents, which consent shall not be unreasonably
withheld, conditioned or delayed, and each Agent represents, warrants and agrees that, unless
it obtains the prior written consent of the Company, which consent shall not be unreasonably
withheld, conditioned or delayed, 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 Agents 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. For
the purposes of clarity, the parties hereto agree that all free writing prospectuses, if
any, listed in Exhibit 21 hereto are Permitted Free Writing Prospectuses.
23. Absence
of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) each 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 Agents, 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 Agents have advised or is advising the Company on other matters, and the Agents have
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) neither
the Agents nor their affiliates have 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 Agents and their affiliates are engaged in a broad range of transactions which may
involve interests that differ from those of the Company and such Agent and its affiliates
have 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 each Agent or its
affiliates 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 such Agent and its
affiliates shall not have any liability (whether direct or indirect, in contract, tort or
otherwise) to the Company in respect of such a fiduciary duty claim or to any person asserting
a fiduciary duty claim on its behalf or in right of the Company, including stockholders,
employees or creditors of the Company.
24. Definitions. As
used in this Agreement, the following terms have the respective meanings set forth below:
“Applicable
Time” means (i) each Representation Date, (ii) the time of each sale of any Placement Shares pursuant to this Agreement
and (iii) each Settlement Date.
“Governmental
Authority” means (i) any federal, provincial, state, local, municipal, national or international government or governmental
authority, regulatory or administrative agency, governmental commission, department, board, bureau, agency or instrumentality, court,
tribunal, arbitrator or arbitral body (public or private); (ii) any self-regulatory organization; or (iii) any political subdivision
of any of the foregoing.
“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
Regulations.
“Rule
164,” “Rule 172,” “Rule 405,” “Rule 415,”
“Rule 424,” “Rule 424(b),” “Rule 430B,” and “Rule 433”
refer to such rules under the Securities Act Regulations.
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 Agents outside of the United States.
[Signature
Page Follows]
If
the foregoing correctly sets forth the understanding between the Company and each Agent, please so indicate in the space provided below
for that purpose, whereupon this Agreement shall constitute a binding agreement between the Company and each Agent.
Very truly yours,
Strive, Inc.
By:
/s/ Matthew Cole
Name:
Matthew Cole
Title:
Chief Executive Officer
ACCEPTED as of the date first-above written:
CANTOR FITZGERALD & CO.
By:
/s/ Sameer Vasudev
Name:
Sameer Vasudev
Title:
Managing Director
BARCLAYS CAPITAL INC.
By:
/s/ Jamie Turturici
Name:
Jamie Turturici
Title:
Head of Technology and Communications (TMT) Equity Capital Markets
CLEAR STREET LLC
By:
/s/ Ryan Gerety
Name:
Ryan Gerety
Title:
COO IBD
[Signature Page to Strive, Inc. – SATS
Sales Agreement]
If
the foregoing correctly sets forth the understanding between the Company and each Agent, please so indicate in the space provided below
for that purpose, whereupon this Agreement shall constitute a binding agreement between the Company and each Agent.
ACCEPTED as of the date first-above written:
StoneX Financial Inc.
By:
/s/ John J. Borer III
Name:
John J. Borer III
Title:
Senior Managing Director, Head of Investment Banking
B. Riley Securities, Inc.
By:
/s/ Joe Nardini
Name:
Joe Nardini
Title:
President, Co-Head of Investment Banking
Maxim Group LLC
By:
/s/ Larry Glassberg
Name:
Larry Glassberg
Title:
Co-Head of Investment Banking
H.C. Wainwright & Co., LLC
By:
/s/ Merav Gershtenman
Name:
Merav Gershtenman
Title:
Chief Legal Officer
[Signature Page
to Strive, Inc. – SATS Sales Agreement]
SCHEDULE 1
__________________________
Form of Placement
Notice
__________________________
From: Strive, Inc.
To: [Designated Agent]
(the “Designated Agent”)
Attention: [•]
Subject: Placement Notice
Date: [•], 20[•]
Ladies
and Gentlemen:
Pursuant
to the terms and subject to the conditions contained in the Controlled Equity OfferingSM Sales Agreement between Strive,
Inc., a Nevada corporation (the “Company”), Cantor Fitzgerald & Co., Barclays Capital Inc., Clear
Street LLC, StoneX Financial Inc., B. Riley Securities, Inc., Maxim Group LLC and H.C. Wainwright & Co., LLC, dated October 26,
2026, the Company hereby requests that the Designated Agent sell up to [•] of the Company’s 15.00% Series A Perpetual Sats
Preferred Stock, par value $0.001 per share, at a minimum market price of $[•] per share, during the time period beginning
[month, day, time] and ending [month, day, time].
SCHEDULE 2
__________________________
Compensation
__________________________
The
Company shall pay to the Agents in cash, upon each sale of Placement Shares pursuant to this Agreement, an amount up to 2.0% of the aggregate
gross proceeds from each sale of Placement Shares.
SCHEDULE 3
__________________________
Notice
Parties
__________________________
The
Company
Matthew
Cole
Benjamin
Pham
Brian
Logan Beirne
Cantor
Fitzgerald & Co.
Sameer
Vasudev
With copies to:
Barclays
Capital Inc.
Matt
Gannon
Clear
Street LLC
Ryan
Gerety
With
copies to:
StoneX
Financial Inc.
Anthony DiCiollo
B. Riley Securities, Inc.
Joe Nardini
Mike Cavanagh
Scott Ammaturo
Keith Pompliano
ATM Administration
With copies to:
Maxim Group LLC
Ritesh Veera
Bill Vitale
H.C. Wainwright
& Co., LLC
SCHEDULE 4
__________________________
Subsidiaries
__________________________
Incorporated by reference
to Exhibit 21.1 of the Company’s most recently filed Annual Report on Form 10-K.
Form
of Representation Date Certificate Pursuant to Section 7(l)
The
undersigned, the duly qualified and elected [•], of Strive, Inc., a Nevada corporation (the “Company”), does
hereby certify in such capacity and on behalf of the Company, pursuant to Section 7(l) of the Controlled Equity
OfferingSM Sales Agreement, dated October 26, 2026 (the “Sales Agreement”), between the Company, Cantor
Fitzgerald & Co., Barclays Capital Inc., Clear Street LLC, StoneX Financial Inc., B. Riley Securities, Inc., Maxim Group LLC and
H.C. Wainwright & Co., LLC, that to the best of the knowledge of the undersigned:
(i) The representations
and warranties of the Company in Section 6 of the Sales Agreement (A) to the extent such representations and warranties
are subject to qualifications and exceptions contained therein relating to materiality or Material Adverse Effect, are true and correct
on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof, except for those representations
and warranties that speak solely as of a specific date and which were true and correct as of such date, and (B) to the extent such representations
and warranties are not subject to any qualifications or exceptions, are true and correct in all material respects as of the date hereof
as if made on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof, except for
those representations and warranties that speak solely as of a specific date and which were true and correct as of such date; provided,
however, that in the case of clauses (A) and (B) such representations and warranties also shall be qualified by the disclosure
included or incorporated by reference in the Registration Statement and Prospectus; and
(ii) The Company
has complied with all agreements and satisfied all conditions on its part to be performed or satisfied pursuant to the Sales Agreement
at or prior to the date hereof.
Capitalized
terms used herein without definition shall have the meanings given to such terms in the Sales Agreement.
Strive, Inc.
By:
Name:
Title:
Date:
[•]
Exhibit
21
Permitted
Free Writing Prospectus
None.
EX-5.1 — EXHIBIT 5.1
EX-5.1
Filename: dp255514_ex0501.htm · Sequence: 3
Exhibit 5.1
Brownstein Hyatt Farber Schreck, LLP
702.382.2101 main
100 North City Parkway, Suite 1600
Las Vegas, Nevada 89106
October 26, 2026
Strive, Inc.
200 Crescent Court, Suite 1400
Dallas, Texas 75201
To the addressee set forth above:
We have acted as local Nevada counsel to Strive,
Inc., a Nevada corporation (the “Company”), in connection with the transactions contemplated by that certain Controlled
Equity OfferingSM Sales Agreement, dated as of October 26, 2026 (the “Sales Agreement”), by and between
the Company and Cantor Fitzgerald & Co., Barclays Capital Inc., Clear Street LLC, StoneX Financial Inc., B. Riley Securities, Inc.,
Maxim Group LLC and H.C. Wainwright & Co., LLC, as agents (in such capacity, the “Agents”), relating to the issuance,
offering and sale by the Company of shares from time to time of the Company’s 15.00% Series A Perpetual SATS Preferred Stock, par
value $0.001 per share (the “SATS Stock”), having an aggregate offering price of up to $1,000,000,000 (the “Shares”),
as more fully described in the base prospectus, dated September 15, 2025 (the “Base Prospectus”), contained in the
Registration Statement on Form S-3 (File No. 333-290252) (the “Registration Statement”), as supplemented by the prospectus
supplement, dated October 26, 2026 (together with the Base Prospectus, the “Prospectus”), each as filed with the Securities
and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”). This
opinion letter is being delivered at your request pursuant to the requirements of Item 601(b)(5) of Regulation S-K under the Act.
In our capacity as such counsel, we are familiar
with the proceedings taken and proposed to be taken by the Company in connection with the authorization, issuance, offering and sale of
the Shares as contemplated by the Sales Agreement and as described in the Registration Statement and the Prospectus. For purposes
of this opinion letter, and except to the extent set forth in the opinion expressed below, we have assumed that all such proceedings have
been or will be timely completed in the manner presently proposed in the Sales Agreement, the Registration Statement and the Prospectus.
For purposes of issuing this opinion letter, we
have (a) made such legal and factual examinations and inquiries, including an examination of originals or copies certified or otherwise
identified to our satisfaction as being true copies of (i) the Sales Agreement (including the form of the placement notice attached thereto),
(ii) the Registration Statement and the Prospectus, (iii) the articles of incorporation and bylaws of the Company, each as amended to
date, and (iv) such other agreements, instruments, corporate records (including, without limitation, resolutions adopted by the board
of directors and any committee thereof, and by the stockholders of the Company) and documents, or forms therof, as we have deemed necessary
or appropriate for the purpose of issuing this opinion letter, and (b) obtained from officers and other representatives and agents of
the Company, and from public officials, and have relied upon, such certificates, representations and assurances, and public filings, as
we have deemed necessary or appropriate.
www.bhfs.com
Strive, Inc.
October 26, 2026
Page 2
Without limiting the generality of the foregoing,
in our examination, we have, with your permission, assumed without independent verification, that (i) the statements of fact and all covenants,
representations and warranties set forth in the documents we have reviewed are and at all relevant times will be true and correct as to
factual matters; (ii) each natural person executing a document has, or at all relevant times will have, sufficient legal capacity to do
so; (iii) all documents submitted to us as originals are authentic, the signatures on all documents that we have examined are genuine
and all documents submitted to us as certified, conformed, photostatic, facsimile or electronic copies conform to the original document;
(iv) all corporate records made available to us by the Company, and all public records we have reviewed, are accurate and complete; (v)
the obligations of each party set forth in the documents we have reviewed are its valid and binding obligations, enforceable
against such party in accordance with their respective terms; (vi) all documents we have reviewed accurately describe and contain the
mutual understanding of the parties thereto and there are no oral or written agreements or understandings, and there is no course of prior
dealing between any of the parties, that would in any manner vary or supplement the terms and provisions of such documents, or of the
relationships set forth therein, or which would constitute a waiver of any of the provisions thereof by the actions or conduct of the
parties or otherwise, or which would have an effect on the opinion issued herein; and (vii) immediately after any issuance of Shares,
the total number of issued and outstanding shares of SATS Stock, together with the total number of shares of SATS Stock then reserved
for issuance or obligated to be issued by the Company pursuant to any agreement, arrangement, plan (including under the Sales Agreement),
or otherwise, will not exceed the total number of shares of SATS Stock then authorized under the Company’s articles of incorporation,
including the certificate of designation establishing the SATS Stock.
We are qualified to practice law in the State of
Nevada. The opinions set forth herein are expressly limited to and based exclusively on the general corporate laws of the State
of Nevada, and we do not purport to be experts on, or to express any opinion with respect to the applicability thereto or the effect thereon
of, the laws of any other jurisdiction. We express no opinion concerning, and we assume no responsibility as to laws or judicial
decisions related to, or any orders, consents or other authorizations or approvals as may be required by, any federal laws, rules or regulations,
including, without limitation, any federal securities laws, rules or regulations, or any state securities or “blue sky” laws,
rules or regulations.
Based upon the foregoing and in reliance thereon,
and having regard to legal considerations and other information that we deem relevant, we are of the opinion that:
1. The
Shares have been duly authorized by the Company.
2. If,
when and to the extent any Shares are issued and sold in accordance with all applicable terms and conditions set forth in, and in the
manner contemplated by, the Sales Agreement, including payment in full to the Company of all consideration required therefor, and as described
in the Registration Statement and the Prospectus, such Shares will be validly issued, fully paid and nonassessable.
The opinions expressed herein are based upon the
applicable laws of the State of Nevada and the facts in existence on the date of this opinion letter. In delivering this opinion
letter to you, we disclaim any obligation to update or supplement the opinions set forth herein or to apprise you of any changes in any
Strive, Inc.
October 26, 2026
Page 3
laws or facts after the date hereof. No opinion is offered
or implied as to any matter, and no inference may be drawn, beyond the strict scope of the specific issues expressly addressed by the
opinions set forth herein.
We hereby consent to the filing of this opinion
letter as an exhibit to the Current Report on Form
8-K being filed on the date hereof and incorporated by reference into the Registration Statement and to the reference to our firm in the
Prospectus under the heading “Legal Matters”. In giving this consent, we do not admit that we are within the category
of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ Brownstein Hyatt Farber Schreck, LLP
EX-99.1 — EXHIBIT 99.1
EX-99.1
Filename: dp255514_ex9901.htm · Sequence: 4
Exhibit 99.1
Strive Announces $1.0 Billion SATS At-The-Market
Program
DALLAS, TX—(GLOBE NEWSWIRE)—October
26, 2026—Strive, Inc. (Nasdaq: ASST; SATA; SATS) (“Strive” or the “Company”) today announced that it has
entered into a sales agreement pursuant to which Strive may issue and sell shares of its 15.00% Series A Perpetual SATS Preferred Stock,
$0.001 par value per share (the “SATS Stock”), having an aggregate offering price of up to $1.0 billion (the “ATM Program”).
Strive intends to use the net proceeds from the
ATM Program for general corporate purposes, including, among other things, the acquisition of bitcoin and bitcoin-related products and
for working capital, the purchase of income generating assets to grow the Company’s business, other capital expenditures, and/or
repurchases of shares of the Company’s Class A common stock, par value $0.001 per share (the “Class A Common Stock”)
or its Variable Rate Series A Perpetual Preferred Stock, par value $0.001 per share (the “SATA Stock”). Strive may also use
such proceeds to fund acquisitions of businesses, assets or technologies that complement our current business, for the payment of cash
dividends declared or expected to be declared by Strive’s board of directors from time to time on shares of any class or series
of Strive’s preferred stock then outstanding, or for repayment of future indebtedness.
The SATS Stock, subject to the terms and conditions
of the sales agreement, may be sold by the sales agents by any method that is deemed an “at the market offering” as defined
in Rule 415(a)(4) promulgated under the Securities Act of 1933, as amended or any other method permitted by law.
The sale of SATS Stock under the ATM Program is
only offered pursuant to a prospectus supplement, filed with the Securities and Exchange Commission on October 26, 2026 under the existing
automatic shelf registration statement, which became effective on September 15, 2025 (File No. 333-290252), and the base prospectus contained
therein.
About Strive
Strive is a structured finance company focused
on disciplined capital allocation and long-term value creation. We have strategically adopted bitcoin as our hurdle rate for capital deployment
because of our fiduciary duty to maximize long-term value for stockholders and compound purchasing power over time.
Strive Asset Management, LLC, a direct, wholly
owned subsidiary of Strive and an SEC-registered investment adviser, manages over $2.8 billion in assets.
Cautionary Statement Regarding Forward-Looking Statements
Certain statements herein may constitute “forward-looking
statements” within the meaning of the Private Securities Litigation Reform Act of 1995, Section 27A of the Securities Act of 1933,
as amended (the “Securities Act”), and Rule 175 promulgated thereunder, and Section 21E of the Securities Exchange Act of
1934, as amended (the “Exchange Act”), and Rule 3b-6 promulgated thereunder, which statements involve inherent risks
and uncertainties. Examples of forward-looking statements include, but are not limited to, express or implied statements regarding the
outlook and expectations of Strive and its subsidiaries, the strategic benefits and financial benefits of the merger transaction with
Semler Scientific, Inc. (the “merger transaction”), including the expected impact of the merger transaction on Strive’s
future financial performance and the ability to successfully integrate the combined businesses, and the anticipated use of proceeds from
the offering. Such statements are often characterized by the use of qualified words (and their derivatives) such as “may,”
“will,” “anticipate,” “could,” “should,” “would,” “believe,” “contemplate,”
“expect,” “estimate,” “continue,” “plan,” “project,” “predict,”
“potential,” “assume,” “forecast,” “target,” “budget,” “outlook,”
“trend,” “guidance,” “objective,” “goal,” “strategy,” “opportunity,”
and “intend,” as well as words of similar meaning or other statements concerning opinions or judgments of Strive and its management
team about future events. Forward-looking statements are based on assumptions as of the time they are made and are subject to risks, uncertainties
and other factors that are difficult to predict with regard to timing, extent, likelihood and degree of occurrence, which could cause
actual results to differ materially from anticipated results expressed or implied by such forward-looking statements as a result of various
important factors. Other risks, uncertainties and assumptions, include, among others, the following:
· the outcome of any legal proceedings that may be instituted against Strive or its subsidiaries;
· the possibility that the anticipated benefits of the merger transaction are not realized when expected
or at all, including as a result of changes in, or problems arising from, implementation of Bitcoin treasury strategies and risks associated
with Bitcoin and other digital assets, general economic and market conditions, interest and exchange rates, monetary policy, and laws
and regulations and their enforcement;
· the diversion of management’s attention from ongoing business operations and opportunities;
· dilution caused by Strive’s issuance of additional shares of its SATS Stock, Class A Common Stock
or SATA Stock;
· potential adverse reactions of Strive’s clients and customers or changes to business or employee
relationships, including those resulting from the completion of the merger transaction; and
· other factors that may affect future results of Strive or the future trading performance of its SATS Stock,
Class A Common Stock or SATA Stock.
These factors are not necessarily all of the factors
that could cause Strive’s actual results, performance or achievements to differ materially from those expressed in or implied by
any of the forward-looking statements. Other factors, including unknown or unpredictable factors, also could harm Strive’s results.
Although Strive believes that its expectations
with respect to forward-looking statements are based upon reasonable assumptions within the bounds of its existing knowledge of its business
and operations, there can be no assurance that the actual results of Strive will not differ materially from any projected future results
expressed or implied by such forward-looking statements. Additional factors that could cause results to differ materially from those described
above can be found in Strive’s Annual Report on Form 10-K for the fiscal year ended December 31, 2025 and quarterly reports on Form
10-Q, and other documents subsequently filed by Strive with the SEC.
The actual results anticipated may not be realized
or, even if substantially realized, they may not have the expected consequences to or effects on Strive or its businesses or operations.
Investors are cautioned not to rely too heavily on any such forward-looking statements. Forward-looking statements contained in this press
release speak only as of the date hereof, and Strive undertakes no obligation to update or clarify these forward-looking statements, whether
as a result of new information, future events or otherwise, except to the extent required by applicable law.
No Offer or Solicitation
This press release is
not intended to and shall not constitute an offer to sell or the solicitation of an offer to sell or the solicitation of an offer to buy
any securities, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful
prior to registration or qualification under the securities laws of any such jurisdiction.
Strive Media Contact:
media@strive.com
Investor Contact:
ir@strive.com
Source: Strive, Inc.
2
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