Exhibit 1.1
[***] Certain information has been excluded
pursuant to Item 601(b)(10)(iv) of Regulation S-K from this document because it is both not material and is the type that the registrant
treats as private or confidential.
UNDERWRITING AGREEMENT
among
BITNILE
HOLDINGS, INC.
and
ALEXANDER CAPITAL, L.P.,
as Representative of the Several Underwriters
BITNILE HOLDINGS, INC.
UNDERWRITING AGREEMENT
New York, New York
May 26, 2022
Alexander Capital, L.P.
As Representative of the several Underwriters named on Schedule 1 attached hereto
c/o Alexander Capital, L.P.
17 State Street, 5th Floor
New York, NY 10004
Ladies and Gentlemen:
The undersigned, BitNile Holdings,
Inc., a corporation formed under the laws of the State of Delaware (collectively with its subsidiaries and affiliates, including, without
limitation, all entities disclosed or described in the Registration Statement (as hereinafter defined) and set forth on Schedule 3
attached hereto, as being subsidiaries or affiliates of BitNile Holdings, Inc., the “Company”), hereby confirms its
agreement (this “Agreement”) with the Underwriters named in Schedule 1 hereto (the “Representative”
and such other underwriters being collectively called the “Underwriters” or, individually, an “Underwriter”)
as follows:
1. Purchase
and Sale of Shares.
1.1 Firm
Shares.
1.1.1 Nature
and Purchase of Firm Shares.
(i) On
the basis of the representations and warranties herein contained, but subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to the several Underwriters, an aggregate of 123,423 shares (the “Firm Shares”) of the Company’s
“13.00% Series D Cumulative Redeemable Perpetual Preferred Stock” (the “Preferred Stock”). The offering
and sale of the Firm Shares is hereinafter referred to as the “Offering.”
(ii) The
Underwriters, severally and not jointly, agree to purchase from (A) the Company the number of Firm Shares set forth opposite their respective
names on Schedule 1 attached hereto and made a part hereof at a purchase price of $23.25 per share (93.0% of the per Firm Share
offering price); provided, that the purchase price for Firm Shares purchased by any person introduced to the Representative by
the Company, including officers and directors of the Company (or their respective affiliates), shall be $24.25 (97.0% of the per Firm
Share offering price). The Firm Shares are to be offered initially to the public at the offering price set forth on the cover page of
the Prospectus (as defined in Section 2.1.1 hereof).
1.1.2 Shares
Payment and Delivery.
(i) Delivery
and payment for the Firm Shares shall be made at 10:00 a.m., Eastern time, on the second (2nd) Business Day following the date
(the “Effective Date”) of the prospectus supplement included in the Prospectus (as defined in Section 2.1.1 below)
or at such earlier time as shall be agreed upon by the Representative and the Company, at the offices of Cozen O’Connor, 33 South
6th Street, Suite 3800, Minneapolis, Minnesota 55402 (“Representative Counsel”), or at such other place
(or remotely by other electronic transmission) as shall be agreed upon by the Representative and the Company. The hour and date of delivery
and payment for the Firm Shares is called the “Closing Date.”
(ii) Payment
for the Firm Shares shall be made on the Closing Date by wire transfer in Federal (same day) funds, payable to the order of the Company,
upon delivery of the certificates (in form and substance satisfactory to the Underwriters) representing the Firm Shares (or through the
facilities of the Depository Trust Company (“DTC”)) for the account of the Underwriters. The Firm Shares shall be registered
in such name or names and in such authorized denominations as the Representative may request in writing at least two (2) full Business
Days prior to the Closing Date. The Company shall not be obligated to sell or deliver the Firm Shares except upon tender of payment by
the Representative for all of the Firm Shares. The term “Business Day” means any day other than a Saturday, a Sunday
or a legal holiday or a day on which banking institutions are authorized or obligated by law to close in New York, New York.
2. Representations
and Warranties of the Company. The Company represents and warrants to the Underwriters as of the Time of Sale (as defined below) and
as of the Closing Date as follows:
2.1.1 Compliance
with Registration Requirements. The Company has filed with the U.S. Securities and Exchange Commission (the “Commission”)
a registration statement, and an amendment or amendments thereto, on Form S-3 (File No. 333-260618), including a base prospectus (the
“Base Prospectus”), relating to the Preferred Stock. Such registration statement, as amended at the time it became
effective, including the information, if any, deemed pursuant to Rule 430A, 430B or 430C under the Securities Act of 1933, as amended
(the “Securities Act”) to be part of the registration statement at the time of its effectiveness (“Rule 430
Information”), is referred to herein as the “Registration Statement”; and as used herein, the term “Preliminary
Prospectus” means each prospectus included in such registration statement (and any amendments thereto) before effectiveness,
any prospectus filed with the Commission pursuant to Rule 424(a) under the Securities Act and the prospectus included in the Registration
Statement at the time of its effectiveness that omits Rule 430 Information, and the term “Prospectus” means the Base
Prospectus, as supplemented by the prospectus supplement dated May 25, 2022 relating to the Preferred Stock in the form first used
(or made available upon request of purchasers pursuant to Rule 173 under the Securities Act) in connection with confirmation of sales
of the Firm Shares. If the Company has filed an abbreviated registration statement pursuant to Rule 462(b) under the Securities Act (the
“Rule 462 Registration Statement”), then any reference herein to the term “Registration Statement”
shall be deemed to include such Rule 462 Registration Statement. Any reference in this Agreement to the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the Securities Act, as of the effective date of the Registration Statement or the date of such Preliminary Prospectus
or the Prospectus, as the case may be and any reference to “amend”, “amendment” or “supplement” with
respect to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents
filed after such date under the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder
(collectively, the “Exchange Act”), that are deemed to be incorporated by reference therein. Capitalized terms used
but not defined herein shall have the meanings given to such terms in the Registration Statement and the Prospectus.
At or prior to 4:30 p.m. (Eastern
Time) May 26, 2022 (the “Time of Sale”), the Company had prepared the following information (collectively, the “Time
of Sale Information”): a Preliminary Prospectus, dated May 25, 2022.
The Company meets the requirements
for use of Form S-3 under the Securities Act. Each of the Registration Statement and any Rule 462(b) Registration Statement and any post-effective
amendment thereto has become effective under the Securities Act.
At the respective times each
of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto became or becomes effective,
the Registration Statement, the Rule 462(b) Registration Statement and any amendments and supplements thereto complied and will comply
in all material respects with the requirements of the Securities Act and did not and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the
Prospectus, any Preliminary Prospectus and any supplement thereto or prospectus wrapper prepared in connection therewith, at their respective
times of issuance complied and will comply in all material respects with the requirements of the Securities Act. Neither the Prospectus
nor any amendments or supplements thereto (including any prospectus wrapper), at the time the Prospectus or any such amendment or supplement
was or will be issued, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
The documents incorporated
or deemed to be incorporated by reference in the Registration Statement, any Preliminary Prospectus and the Prospectus, when they became
effective or at the time they were, or hereafter are, filed with the Commission, complied and will comply in all material respects with
the requirements of the Exchange Act. The documents incorporated or deemed to be incorporated by reference in the Registration Statement,
any Preliminary Prospectus and the Prospectus, at the time the Registration Statement became effective or when the documents incorporated
by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement,
any Preliminary Prospectus and the Prospectus, as the case may be, did not and will not include an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
As of the Time of Sale, neither
(x) the Issuer General Use Free Writing Prospectus(es) (as defined below) issued at or prior to the Time of Sale and the Statutory Prospectus
(as defined below), including the documents incorporated therein by reference, as of the Time of Sale all considered together (collectively,
the “Time of Sale Information”), nor (y) any individual Issuer Limited Use Free Writing Prospectus, when considered
together with the Time of Sale Information, included any untrue statement of a material fact or omitted to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
“Issuer Free Writing
Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 (“Rule 433”) of
the rules and regulations of the Commission under the Securities Act (the “Securities Act Regulations”), including
without limitation any “free writing prospectus” (as defined in Rule 405 of the Securities Act Regulations) relating to the
Firm Shares that is (i) required to be filed with the Commission by the Company, (ii) 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 (iii) exempt from filing with the
Commission pursuant to Rule 433(d)(5)(i) because it contains a description of the Firm 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).
“Issuer General Use
Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general distribution to prospective investors
(other than a “bona fide electronic road show,” as defined in Rule 433 (the “Bona Fide Electronic Road Show”)).
“Issuer Limited Use
Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not an Issuer General Use Free Writing Prospectus.
“Statutory Prospectus”
as of any time means the prospectus relating to the Firm Shares that is included in the Registration Statement immediately prior to that
time.
2.2 Exchange
Listing. The shares of Preferred Stock have been approved for listing on the NYSE American, LLC (the “Exchange”)
subject only to official notice of issuance, and the Company has taken no action designed to, or likely to have the effect of, delisting
the shares of Preferred Stock from the Exchange, nor has the Company received any notification that the Exchange is contemplating terminating
such listing except as described in the Registration Statement, the Time of Sale Information and the Prospectus.
2.3 No
Stop Orders, etc. Neither the Commission nor, to the Company’s knowledge, any state regulatory authority has issued any
order preventing or suspending the use of the Registration Statement, any Preliminary Prospectus or the Prospectus or has instituted or,
to the Company’s knowledge, threatened to institute, any proceedings with respect to such an order. No proceedings for any of the
preceding purposes have been instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission. The Company
has complied with each request (if any) from the Commission for additional information.
2.4 Disclosures
in Registration Statement.
2.4.1 Compliance
with Securities Act and 10b-5 Representation.
(i) Each
of the Registration Statement and any post-effective amendment thereto, at the time it became effective, complied in all material respects
with the requirements of the Securities Act and the Securities Act Regulations. Each Preliminary Prospectus, including the prospectus
filed as part of the Registration Statement as originally filed or as part of any amendment or supplement thereto, and the Prospectus,
at the time each was filed with the Commission, complied in all material respects with the requirements of the Securities Act and the
Securities Act Regulations. Each Preliminary Prospectus delivered to the Underwriters for use in connection with this Offering and the
Prospectus was or will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
(ii) Neither
the Registration Statement nor any amendment thereto, at its effective time, as of the Time of Sale or at the Closing Date, contained,
contains or will contain an untrue statement of a material fact or omitted, omits or will omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(iii) The
Time of Sale Information, as of the Time of Sale or at the Closing Date, did not, does not and 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; and each Issuer Limited Use Free Writing Prospectus does not conflict in any material respect
with the information contained in the Registration Statement, any Preliminary Prospectus or the Prospectus, and each such Issuer Limited
Use Free Writing Prospectus did 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 light of the circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to statements made or statements omitted in reliance upon and in conformity with
written information furnished to the Company with respect to the Underwriters by the Representative expressly for use in the Registration
Statement or the Prospectus or any amendment thereof or supplement thereto. The parties acknowledge and agree that such information provided
by or on behalf of any Underwriter consists solely of the disclosure contained in the “Underwriting” section of the Prospectus
(the “Underwriters’ Information”).
(iv) Neither
the Prospectus nor any amendment or supplement thereto (including any prospectus wrapper), as of its issue date, at the time of any filing
with the Commission pursuant to Rule 424(b) or at the Closing Date, included, includes or will include an untrue statement of a material
fact or omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to
the Underwriters’ Information.
2.4.2 Disclosure
of Agreements. The agreements and documents described in the Registration Statement, the Time of Sale Information and the Prospectus
conform in all material respects to the descriptions thereof contained therein and there are no agreements or other documents required
by the Securities Act and the Securities Act Regulations to be described in the Registration Statement, the Time of Sale Information and
the Prospectus or to be filed with the Commission as exhibits to the Registration Statement, that have not been so described or filed.
Each agreement or other instrument (however characterized or described) to which the Company is a party or by which it is or may be bound
or affected and (i) that is referred to in the Registration Statement, the Time of Sale Information and the Prospectus, or (ii) is material
to the Company’s business, has been duly authorized and validly executed by the Company, is in full force and effect in all material
respects and is enforceable against the Company and, to the Company’s knowledge, the other parties thereto, in accordance with its
terms, except (x) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’
rights generally, (y) as enforceability of any indemnification or contribution provision may be limited
under the federal and state securities
laws, and (z) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable
defenses and to the discretion of the court before which any proceeding therefor may be brought. Except as disclosed in the Registration
Statement, the Time of Sale Information and the Prospectus, none of such agreements or instruments has been assigned by the Company, and
neither the Company nor, to the Company’s knowledge, any other party is in default thereunder and, to the Company’s knowledge,
no event has occurred that, with the lapse of time or the giving of notice, or both, would constitute a default thereunder except for
such defaults that would not reasonably be expected to result in a Material Adverse Change (as defined in Section 2.5.1 below). To the
best of the Company’s knowledge, performance by the Company of the material provisions of such agreements or instruments will not
result in a violation of any existing applicable law, rule, regulation, judgment, order or decree of any governmental agency or court,
domestic or foreign, having jurisdiction over the Company or any of its assets or businesses (each, a “Governmental Entity”),
including, without limitation, those relating to environmental laws and regulations, except for such violations that would not reasonably
be expected to result in a Material Adverse Change.
2.4.3 Prior
Securities Transactions. No securities of the Company have been sold by the Company or by or on behalf of, or for the benefit of,
any person or persons controlling, controlled by or under common control with the Company, except as disclosed in the Registration Statement,
the Time of Sale Information and the Preliminary Prospectus.
2.4.4 Regulations.
The disclosures in the Registration Statement, the Time of Sale Information and the Prospectus concerning the effects of federal, state,
local and all foreign regulation on the Offering and the Company’s business as currently contemplated are correct in all material
respects and no other such regulations are required to be disclosed in the Registration Statement, the Time of Sale Information and the
Prospectus which are not so disclosed.
2.5 Changes
After Dates in Registration Statement.
2.5.1 No
Material Adverse Change. Since the respective dates as of which information is given in the Registration Statement, the Time of Sale
Information and the Prospectus, except as otherwise specifically stated therein and except in accordance with its ordinary operations:
(i) there has been no material adverse change in the financial position or results of operations of the Company, nor to the Company’s
knowledge, any change or development that, singularly or in the aggregate, would involve a material adverse change, in or affecting the
condition (financial or otherwise), results of operations, business, assets or prospects of the Company (a “Material Adverse
Change”); and (ii) there have been no material transactions entered into by the Company not in the ordinary course of business,
other than as contemplated pursuant to this Agreement.
2.5.2 Recent
Securities Transactions, etc. Subsequent to the respective dates as of which information is given in the Registration Statement, the
Time of Sale Information and the Prospectus, and except as may otherwise be indicated or contemplated herein or disclosed in the Registration
Statement, the Time of Sale Information and the Prospectus, the Company has not: (i) issued any securities,
other than securities issued pursuant to the Company’s existing equity incentive plans or shares issuable upon the exercise of then
outstanding options, warrants and convertible securities, which in each case were disclosed in the Prospectus, Time of Sale Information
or the Registration Statement, or incurred any liability or obligation, direct or contingent,
for borrowed money; or (ii) declared or paid any dividend or made any other distribution on or in respect to its capital stock.
2.6 Independent
Accountants. To the knowledge of the Company, Marcum LLP (the “Auditor”) and BDO ZIV HAFT (relating only to
Enertec Systems 2001 Ltd., an Israeli company) (“BDO”), each of whose reports is filed with the Commission as part
of the Registration Statement, the Time of Sale Information and the Prospectus, are independent registered public accounting firms as
required by the Securities Act and the Securities Act Regulations and the Public Company Accounting Oversight Board. Except as disclosed
in the Registration Statement, the Time of Sale Information and the Prospectus, each of the Auditor and BDO has not, during the periods
covered by the financial statements included in the Registration Statement, the Time of Sale Information and the Prospectus, provided
to the Company any non-audit services, as such term is used in Section 10A(g) of the Exchange Act.
2.7 Financial
Statements, etc. The financial statements, including the notes thereto and supporting schedules, if any, included in the Registration
Statement, the Time of Sale Information and the Prospectus, fairly in all material respects present the financial position and the results
of operations of the Company at the dates and for the periods to which they apply; and such financial statements have been prepared in
conformity with U.S. generally accepted accounting principles (“GAAP”), consistently applied throughout the periods
involved (provided that unaudited interim financial statements are subject to year-end audit adjustments that are not expected
to be material in the aggregate and do not contain all footnotes required by GAAP); and any supporting schedules included in the Registration
Statement present fairly in all material respects the information required to be stated therein. Except as included therein, no historical
or pro forma financial statements are required to be included in the Registration Statement, the Time of Sale Information or the Prospectus
under the Securities Act or the Securities Act Regulations. The pro forma and pro forma as adjusted financial information and the related
notes, if any, included in the Registration Statement, the Time of Sale Information and the Prospectus have been properly compiled and
prepared in accordance with the applicable requirements of the Securities Act and the Securities Act Regulations and present fairly in
all material respects the information shown therein, and the assumptions used in the preparation thereof are reasonable and the adjustments
used therein are appropriate to give effect to the transactions and circumstances referred to therein. All disclosures contained in the
Registration Statement, the Time of Sale Information or the Prospectus regarding “non-GAAP financial measures” (as such term
is defined by the rules and regulations of the Commission), if any, comply with Regulation G of the Exchange Act and Item 10 of Regulation
S-K of the Securities Act, to the extent applicable. Each of the Registration Statement, the Time of Sale Information and the Prospectus
discloses all material off-balance sheet transactions, arrangements, obligations (including contingent obligations), and other relationships
of the Company with unconsolidated entities or other persons that may have a material current or future effect on the Company’s
financial condition, changes in financial condition, results of operations, liquidity, capital expenditures, capital resources, or significant
components of revenues or expenses. Except as disclosed in the Registration Statement, the Time of Sale Information and the Prospectus,
(a) since the date of the latest balance sheet included in the Registration Statement, the Time of Sale Information or the Prospectus,
neither the Company nor any of its direct and indirect subsidiaries, including each entity disclosed or described in the Registration
Statement, the Time of Sale Information and the Prospectus as being a subsidiary of the Company (each, a “Subsidiary”
and, collectively, the “Subsidiaries”), has incurred any material liabilities or obligations, direct or contingent,
or entered into any material transactions other than in the ordinary course of business, (b) the Company has not declared or paid any
dividends or made any distribution of any kind with respect to its capital stock, (c) since the date of the latest balance sheet included
in the Registration Statement, the Time of Sale Information or the Prospectus, there has not been any change in the capital stock of the
Company or any of its Subsidiaries, or, other than in the course of business, any grants under any stock compensation plan, and (d) there
has not been any Material Adverse Change in the Company’s long-term or short-term debt.
2.8 Authorized
Capital; Options, etc. The Company had, at the date or dates indicated in the Registration Statement, the Time of Sale Information
and the Prospectus, the duly authorized, issued and outstanding capitalization as set forth therein. Based on the assumptions stated in
the Registration Statement, the Time of Sale Information and the Prospectus, the Company will have on the Closing Date the adjusted stock
capitalization set forth therein. Except as set forth in, or contemplated by, the Registration Statement, the Time of Sale Information
and the Prospectus, on the Effective Date, as of the Time of Sale and on the Closing Date, there will be no stock options, warrants, or
other rights to purchase or otherwise acquire any authorized, but unissued shares of Preferred Stock of the Company or any security convertible
or exercisable into shares of Preferred Stock of the Company, or any contracts or commitments to issue or sell shares of Preferred Stock
or any such options, warrants, rights or convertible securities.
2.9 Valid
Issuance of Securities, etc.
2.9.1 Outstanding
Securities. All issued and outstanding securities of the Company issued prior to the transactions contemplated by this Agreement have
been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect
thereto, and are not subject to personal liability by reason of being such holders; and none of such securities were issued in violation
of the preemptive rights of any holders of any security of the Company or similar contractual rights granted by the Company. The authorized
shares of Preferred conform in all material respects to all statements relating thereto contained in the Registration Statement, the Time
of Sale Information and the Prospectus. The offers and sales of the outstanding shares of Preferred Stock were at all relevant times either
registered under the Securities Act and the applicable state securities or “blue sky” laws or, based in part on the representations
and warranties of the purchasers of such Shares, exempt from such registration requirements.
2.9.2 Securities
Sold Pursuant to this Agreement. The Firm Shares have been duly authorized for issuance and sale and, when issued and paid for, will
be validly issued, fully paid and non-assessable; the holders thereof are not and will not be subject to personal liability by reason
of being such holders; the Firm Shares are not and will not be subject to the preemptive rights of any holders of any security of the
Company or similar contractual rights granted by the Company; and all corporate action required to be taken for the authorization, issuance
and sale of the Firm Shares has been duly and validly taken. The Firm Shares conform in all material respects to all statements with respect
thereto contained in the Registration Statement, the Time of Sale Information and the Prospectus.
2.10 Registration
Rights of Third Parties. Except as set forth in the Registration Statement, the Time of Sale Information and the Prospectus, no
holders of any securities of the Company or any rights exercisable for or convertible or exchangeable into securities of the Company have
the right to require the Company to register any such securities of the Company under the Securities Act or to include any such securities
in a registration statement to be filed by the Company.
2.11 Validity
and Binding Effect of Agreements. This Agreement has been duly and validly authorized by the Company, and, when executed and delivered,
will constitute, the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except:
(i) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights
generally; (ii) as enforceability of any indemnification or contribution provision may be limited under the federal and state securities
laws; and (iii) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable
defenses and to the discretion of the court before which any proceeding therefor may be brought.
2.12 No
Conflicts, etc. The execution, delivery and performance by the Company of this Agreement and all ancillary documents, the consummation
by the Company of the transactions herein and therein contemplated and the compliance by the Company with the terms hereof and thereof
do not and will not, with or without the giving of notice or the lapse of time or both: (i) result in a material breach of, or conflict
in any material respect with any of the terms and provisions of, or constitute a material default under, or result in the creation, modification,
termination or imposition of any material lien, charge or encumbrance upon any property or assets of the Company pursuant to the terms
of any agreement or instrument to which the Company is a party; (ii) result in any violation of the provisions of the Company’s
Certificate of Incorporation or Certificate of Designation, Preferences and Rights of 13.00% Series D Cumulative Redeemable Perpetual
Preferred Stock (as the same may be amended or restated from time to time, the “Charter”) or the by-laws of the Company;
or (iii) violate any existing applicable law, rule, regulation, judgment, order or decree of any Governmental Entity as of the date hereof;
except in the cases of clause (iii) above, for such breaches, conflicts or defaults that would not reasonably be expected to result in
a Material Adverse Change.
2.13 No
Defaults; Violations. No material default exists in the due performance and observance of any term, covenant or condition of any
material license, contract, indenture, mortgage, deed of trust, note, loan or credit agreement, or any other agreement or instrument evidencing
an obligation for borrowed money, or any other material agreement or instrument to which the Company is a party or by which the Company
may be bound or to which any of the properties or assets of the Company is subject. The Company is not in violation of any term or provision
of its Charter or by-laws. The Company is not in violation of any franchise, license, permit, applicable law, rule, regulation, judgment
or decree of any Governmental Entity, except for such violations that would not reasonably be expected to result in a Material Adverse
Change.
2.14 Corporate
Power; Licenses; Consents.
2.14.1 Conduct
of Business. Except as described in the Registration Statement, the Time of Sale Information and the Prospectus, the Company has all
requisite corporate power and authority, and has all necessary authorizations, approvals, orders, licenses, certificates and permits (“Permits”)
of and from any Governmental Entity that it needs as of the date hereof to conduct its business purpose as described in the Registration
Statement, the Time of Sale Information and the Prospectus, except for such Permits, the absence of which would not reasonably be expected
to have a Material Adverse Change.
2.14.2 Transactions
Contemplated Herein. The Company has all corporate power and authority to enter into this Agreement and to carry out the provisions
and conditions hereof, and all consents, authorizations, approvals and orders required in connection therewith have been obtained. No
consent, authorization or order of, and no filing with, any court, government agency or other body is required for the valid issuance,
sale and delivery of the Firm Shares and the consummation of the transactions and agreements contemplated by this Agreement and as contemplated
by the Registration Statement, the Time of Sale Information and the Prospectus, except with respect to applicable federal and state securities
laws and the rules and regulations of the Financial Industry Regulatory Authority, Inc. (“FINRA”).
2.15 Litigation;
Governmental Proceedings. There is no action, suit, proceeding, inquiry, arbitration, investigation, litigation or governmental
proceeding pending or, to the Company’s knowledge, threatened against, or involving the Company or, to the Company’s knowledge,
any executive officer or director which has not been disclosed in the Registration Statement, the Time of Sale Information and the Prospectus
or in connection with the Company’s listing application for the listing of the Firm Shares on the Exchange, which individually or
in the aggregate, if determined adversely to the Company would reasonably be expected to have a Material Adverse Change.
2.16 Good
Standing. The Company has been duly organized and is validly existing as a corporation and is in good standing under the laws
of the State of Delaware as of the date hereof, and is duly qualified to do business and is in good standing in each other jurisdiction
in which its ownership or lease of property or the conduct of business requires such qualification, except where the failure to qualify,
singularly or in the aggregate, would not have or reasonably be expected to result in a Material Adverse Change.
2.17 Insurance.
The Company carries or is entitled to the benefits of insurance, with reputable insurers, in such amounts and covering such risks which
the Company believes are adequate, and all such insurance is in full force and effect. The Company has no reason to believe that it will
not be able (i) to renew its existing insurance coverage as and when such policies expire or (ii) to obtain comparable coverage from similar
institutions as may be necessary or appropriate to conduct its business as now conducted and at a cost that would not reasonably be expected
to result in a Material Adverse Change.
2.18 Transactions
Affecting Disclosure to FINRA.
2.18.1 Finder’s
Fees. Except as described in the Registration Statement, the Time of Sale Information and the Prospectus, there are no claims, payments,
arrangements, agreements or understandings relating to the payment of a finder’s, consulting or origination fee by the Company or
any Insider with respect to the sale of the Firm Shares hereunder or any other arrangements, agreements or understandings of the Company
or, to the Company’s knowledge, any of its stockholders that may affect the Underwriters’ compensation, as determined by FINRA.
2.18.2 Payments
Within Six (6) Months. Except as described in the Registration Statement, the Time of Sale Information and the Prospectus, the Company
has not made any direct or indirect payments (in cash, securities or otherwise) in connection with the Offering to: (i) any person, as
a finder’s fee, consulting fee or otherwise, in consideration of such person raising capital for the Company or introducing to the
Company persons who raised or provided capital to the Company; (ii) any FINRA member; or (iii) any person or entity that has any direct
or indirect affiliation or association with any FINRA member, within the six (6) months prior to the Effective Date, other than the payment
to the Underwriters as provided hereunder.
2.18.3 Use
of Proceeds. None of the net proceeds of the Offering will be paid by the Company to any participating FINRA member or its affiliates,
except as specifically authorized herein.
2.18.4 FINRA
Affiliation. There is no (i) officer or director of the Company, (ii) beneficial owner of 5% or more of any class of the Company’s
securities or (iii) beneficial owner of the Company’s unregistered equity securities which were acquired during the 180-day period
immediately preceding the filing of the Registration Statement that is an affiliate or associated person of a FINRA member participating
in the Offering (as determined in accordance with the rules and regulations of FINRA).
2.18.5 Information.
All information provided by the Company in its FINRA questionnaire to Representative Counsel specifically for use by Representative Counsel
in connection with its Public Offering System filings (and related disclosure) with FINRA is true, correct and complete in all material
respects.
2.19 Foreign
Corrupt Practices Act. None of the Company and its Subsidiaries or, to the Company’s knowledge, any director, officer, agent,
employee or affiliate of the Company and its Subsidiaries or any other person acting on behalf of the Company and its Subsidiaries, has,
directly or indirectly, given or agreed to give any money, gift or similar benefit (other than legal price concessions to customers in
the ordinary course of business) to any customer, supplier, employee or agent of a customer or supplier, or official or employee of any
Governmental Entity or any political party or candidate for office (domestic or foreign) or other person who was, is, or may be in a position
to help or hinder the business of the Company (or assist it in connection with any actual or proposed transaction) that (i) might subject
the Company to any damage or penalty in any civil, criminal or governmental litigation or proceeding, (ii) if not given in the past, might
have caused a Material Adverse Change or (iii) if not continued in the future, might adversely affect the assets, business, operations
or prospects of the Company. The Company has taken reasonable steps to ensure that its accounting controls and procedures are sufficient
to cause the Company to comply in all material respects with the Foreign Corrupt Practices Act of 1977, as amended.
2.20 Compliance
with OFAC. None of the Company and its Subsidiaries or, to the Company’s knowledge, any director, officer, agent, employee
or affiliate of the Company and its Subsidiaries or any other person acting on behalf of the Company and its Subsidiaries, is currently
subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”),
and the Company will not knowingly, directly or indirectly, use the proceeds of the Offering hereunder, or lend, contribute or otherwise
make available such proceeds to any Subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities
of any person currently subject to any U.S. sanctions administered by OFAC.
2.21 Money
Laundering Laws. 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 recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting
Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar
rules, regulations or guidelines, issued, administered or enforced by any Governmental Entity (collectively, the “Money Laundering
Laws”); and no action, suit or proceeding by or before any Governmental Entity involving the Company with respect to the Money
Laundering Laws is pending or, to the best knowledge of the Company, threatened.
2.22 Officers’
Certificate. Any certificate signed by any duly authorized officer of the Company and delivered to you or to Representative Counsel
shall be deemed a representation and warranty by the Company to the Underwriters as to the matters covered thereby.
2.23 [Reserved].
2.24 Subsidiaries.
All direct and indirect Subsidiaries of the Company are duly organized and in good standing under the laws of the place of organization
or incorporation, and each Subsidiary is in good standing in each jurisdiction in which its ownership or lease of property or the conduct
of business requires such qualification, except where the failure to qualify would not have a Material Adverse Change. The Company’s
ownership and control of each Subsidiary is as described in the Registration Statement, the Time of Sale Information and the Prospectus.
2.25 Related
Party Transactions. There are no business relationships or related party transactions involving the Company or any other person
required to be described in the Registration Statement, the Time of Sale Information and the Prospectus that have not been described as
required.
2.26 Board
of Directors. The Board of Directors of the Company is comprised of the persons set forth under the heading of the Definitive
Proxy Statement filed with the Commission on June 7, 2021 captioned “Election of Directors,” except for Glen Tellock,
who resigned from the Board of Directors on February 23, 2022. The qualifications of the persons serving as board members and the overall
composition of the board comply with the Exchange Act, the Exchange Act Regulations, the Sarbanes-Oxley Act of 2002 and the rules promulgated
thereunder (the “Sarbanes-Oxley Act”) applicable to the Company and the listing rules of the Exchange. At least one
member of the Audit Committee of the Board of Directors of the Company qualifies as an “audit committee financial expert,”
as such term is defined under Regulation S-K and the listing rules of the Exchange. In addition, at least a majority of the persons serving
on the Board of Directors qualifies as “independent,” as defined under the listing rules of the Exchange.
2.27 Sarbanes-Oxley
Compliance.
2.27.1 Disclosure
Controls. The Company has developed and currently maintains disclosure controls and procedures that comply in all material respects
with Rule 13a-15 or 15d-15 under the Exchange Act Regulations, and, no later than March 31, 2022, such controls and procedures were effective
to ensure that all material information concerning the Company will be made known on a timely basis to the individuals responsible for
the preparation of the Company’s Exchange Act filings and other public disclosure documents.
2.27.2 Compliance.
The Company is, or at the Time of Sale and on the Closing Date will be, in material compliance with the provisions of the Sarbanes-Oxley
Act applicable to it, and has implemented or will implement such programs and taken reasonable steps to ensure the Company’s future
compliance (not later than the relevant statutory and regulatory deadlines therefor) with all of the material provisions of the Sarbanes-Oxley
Act.
2.28 Accounting
Controls. The Company and its Subsidiaries maintain systems of “internal control over financial reporting” (as defined
under Rules 13a-15 and 15d-15 under the Exchange Act Regulations) that comply in all material respects with the requirements of the Exchange
Act and have been designed by, or under the supervision of, their respective principal executive and principal financial officers, or
persons performing similar functions, to provide reasonable assurance regarding the reliability of financial reporting and the preparation
of financial statements for external purposes in accordance with GAAP, including, but not limited to, 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. Except as disclosed in the Registration Statement, the Time of Sale Information and the Prospectus, the
Company is not aware of any material weaknesses in its internal controls. The Auditor and the Audit Committee of the Board of Directors
of the Company have been advised of: (i) all significant deficiencies and material weaknesses in the design or operation of internal controls
over financial reporting which are known to the Company’s management and that have adversely affected or are reasonably likely to
adversely affect the Company’ ability to record, process, summarize and report financial information; and (ii) any fraud known to
the Company’s management, whether or not material, that involves management or other employees who have a significant role in the
Company’s internal controls over financial reporting.
2.29 No
Investment Company Status. The Company is not and, after giving effect to the Offering and the application of the proceeds thereof
as described in the Registration Statement, the Time of Sale Information and the Prospectus, will not be, required to register as an “investment
company,” as defined in the Investment Company Act of 1940, as amended.
2.30 No
Labor Disputes. No labor dispute with the employees of the Company or any of its Subsidiaries exists or, to the knowledge of the
Company, is imminent.
2.31 Intellectual
Property Rights. The Company and each of its Subsidiaries owns or possesses or has valid rights to use all patents, patent applications,
trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses, inventions, trade secrets
and similar rights (“Intellectual Property Rights”) necessary for the conduct of the business of the Company and its
Subsidiaries as currently carried on and as described in the Registration Statement, the Time of Sale Information and the Prospectus.
To the knowledge of the Company, no action or use by the Company or any of its Subsidiaries necessary for the conduct of its business
as currently carried on and as described in the Registration Statement and the Prospectus will involve
or give rise to any infringement of, or license or similar fees for, any Intellectual Property Rights of others (other
than license or similar fees described or contemplated in the Registration Statement, the Time of Sale Information and the Prospectus).
Neither the Company nor any of its Subsidiaries has received any notice alleging any such infringement, fee or conflict with asserted
Intellectual Property Rights of others. Except as described in the Registration Statement, the Time of Sale Information and the Prospectus
and except as would not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Change (A) to the knowledge
of the Company, there is no infringement, misappropriation or violation by third parties of any of the Intellectual Property Rights owned
by the Company; (B) there is no pending or, to the knowledge of the Company, threatened action, suit, proceeding or claim by others challenging
the rights of the Company in or to any such Intellectual Property Rights, and the Company is unaware of any facts which would form a reasonable
basis for any such claim, that would, individually or in the aggregate, together with any other claims referred to in this Section 2.31,
reasonably be expected to result in a Material Adverse Change; (C) the Intellectual Property Rights owned by the Company and, to the knowledge
of the Company, the Intellectual Property Rights licensed to the Company have not been adjudged by a court of competent jurisdiction invalid
or unenforceable, in whole or in part, and 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 Rights, and the Company is unaware of any facts
which would form a reasonable basis for any such claim that would, individually or in the aggregate, together with any other claims referred
to in this Section 2.31, reasonably be expected to result in a Material Adverse Change; (D) there is no pending or, to the Company’s
knowledge, threatened action, suit, proceeding or claim by others that the Company infringes, misappropriates or otherwise violates any
Intellectual Property Rights or other proprietary rights of others, the Company has not received any written notice of such claim and
the Company is unaware of any other facts which would form a reasonable basis for any such claim that would, individually or in the aggregate,
together with any other claims referred to in this Section 2.31, reasonably be expected to result in a Material Adverse Change; and (E)
to the Company’s knowledge, no employee of the Company is in or has ever been in violation in any material respect of any term of
any employment contract, patent disclosure agreement, invention assignment agreement, non-competition agreement, non-solicitation agreement,
nondisclosure agreement or any restrictive covenant to or with a former employer where the basis of such violation relates to such employee’s
employment with the Company, or actions undertaken by the employee while employed with the Company and could reasonably be expected to
result, individually or in the aggregate, in a Material Adverse Change. To the Company’s knowledge, all material technical information
developed by and belonging to the Company which has not been patented has been kept confidential. The Company is not a party to or bound
by any options, licenses or agreements with respect to the Intellectual Property Rights of any other person or entity that are required
to be set forth in the Registration Statement, the Time of Sale Information and the Prospectus and are not described therein. The Registration
Statement, the Time of Sale Information and the Prospectus contain in all material respects the same description of the matters set forth
in the preceding sentence. None of the technology employed by the Company has been obtained or is knowingly being used by the Company
in material violation of any contractual obligation binding on the Company or, to the Company’s knowledge, any of its officers,
directors or employees, or otherwise in material violation of the rights of any persons.
2.32 Taxes.
Each of the Company and its Subsidiaries has filed all material returns (as hereinafter defined) required to be filed with taxing authorities
prior to the date hereof or has duly obtained extensions of time for the filing thereof. Each of the Company and its Subsidiaries has
paid all taxes (as hereinafter defined) shown as due on such returns that were filed and has paid all taxes imposed on or assessed against
the Company or such respective Subsidiary, except for any such taxes that are currently being contested in good faith. The provisions
for taxes payable, if any, shown on the financial statements filed with or as part of the Registration Statement are sufficient for all
accrued and unpaid taxes, whether or not disputed, and for all periods to and including the dates of such consolidated financial statements.
Except as disclosed in writing to the Underwriters, (i) no material issues have been raised (and are currently pending) by any taxing
authority in connection with any of the returns or taxes asserted as due from the Company or its Subsidiaries, and (ii) no waivers of
statutes of limitation with respect to the returns or collection of taxes have been given by or requested from the Company or its Subsidiaries.
The term “taxes” means all federal, state, local, foreign and other net income, gross income, gross receipts, sales, use,
ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp,
occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments or charges of any kind whatever, together
with any interest and any penalties, additions to tax or additional amounts with respect thereto. The term “returns” means
all returns, declarations, reports, statements and other documents required to be filed in respect to taxes.
2.33 ERISA
Compliance. The Company and any “employee benefit plan” (as defined under the Employee Retirement Income Security
Act of 1974, as amended, and the regulations and published interpretations thereunder (collectively, “ERISA”)) established
or maintained by the Company or its “ERISA Affiliates” (as defined below) are in compliance in all material respects with
ERISA. “ERISA Affiliate” means, with respect to the Company, any member of any group of organizations described in
Sections 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended, and the regulations and published interpretations thereunder
(the “Code”) of which the Company is a member. No “reportable event” (as defined under ERISA) has occurred
or is reasonably expected to occur with respect to any “employee benefit plan” established or maintained by the Company or
any of its ERISA Affiliates. No “employee benefit plan” established or maintained by the Company or any of its ERISA Affiliates,
if such “employee benefit plan” were terminated, would have any “amount of unfunded benefit liabilities” (as defined
under ERISA). Neither the Company nor any of its ERISA Affiliates has incurred or reasonably expects to incur any material liability under
(i) Title IV of ERISA with respect to termination of, or withdrawal from, any “employee benefit plan” or (ii) Sections 412,
4971, 4975 or 4980B of the Code. Each “employee benefit plan” established or maintained by the Company or any of its ERISA
Affiliates that is intended to be qualified under Section 401(a) of the Code is so qualified and, to the knowledge of the Company, nothing
has occurred, whether by action or failure to act, which would cause the loss of such qualification.
2.34 Compliance
with Laws. Each of the Company and its Subsidiaries: (A) is and at all times has been in compliance with all statutes, rules,
or regulations applicable to the ownership, testing, development, manufacture, packaging, processing, use, distribution, marketing, labeling,
promotion, sale, offer for sale, storage, import, export or disposal of any product manufactured or distributed by the Company (“Applicable
Laws”), except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Change; (B)
has not received any warning letter, untitled letter or other correspondence or notice from any other Governmental Entity alleging or
asserting noncompliance with any Applicable Laws or any licenses, certificates, approvals, clearances, authorizations, permits and supplements
or amendments thereto required by any such Applicable Laws (“Authorizations”); (C) possesses all material Authorizations
and such material Authorizations are valid and in full force and effect and are not in material violation of any term of any such Authorizations;
(D) has not received notice of any claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action from
any Governmental Entity or third party alleging that any product operation or activity is in violation of any Applicable Laws or Authorizations
and has no knowledge that any such Governmental Entity or third party is considering any such claim, litigation, arbitration, action,
suit, investigation or proceeding that if brought would result in a Material Adverse Change; (E) has not received notice that any Governmental
Entity has taken, is taking or intends to take action to limit, suspend, modify or revoke any Authorizations and has no knowledge that
any such Governmental Entity is considering such action; (F) has filed, obtained, maintained or submitted all material reports, documents,
forms, notices, applications and records, as required by any Applicable Laws or Authorizations and that all such reports, documents, forms,
notices, applications, and records, were complete and correct in all material respects on the date filed (or were corrected or supplemented
by a subsequent submission); and (G) has not, either voluntarily or involuntarily, initiated, conducted, or issued or caused to be initiated,
conducted or issued, any recall, market withdrawal or replacement, safety alert, post-sale warning, or other notice or action relating
to the alleged lack of safety or any alleged product defect or violation and, to the Company’s knowledge, no third party has initiated,
conducted or intends to initiate any such notice or action.
2.35 Environmental
Matters.
2.35.1 The
business and operations of the Company, and each of its Subsidiaries, have been and are being conducted in compliance with all applicable
laws, ordinances, rules, regulations, licenses, permits, approvals, plans, authorizations or requirements relating to occupational safety
and health, or pollution, or protection of health or the environment (including, without limitation, those relating to emissions, discharges,
releases or threatened releases of pollutants, contaminants or hazardous or toxic substances, materials or wastes into ambient air, surface
water, groundwater or land, or relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or
handling of chemical substances, pollutants, contaminants or hazardous or toxic substances, materials or wastes, whether solid, gaseous
or liquid in nature) of any governmental department, commission, board, bureau, agency or instrumentality of the United States, any state
or political subdivision thereof, or to the knowledge of the Company, any foreign jurisdiction (“Environmental Laws”),
and all applicable judicial or administrative agency or regulatory decrees, awards, judgments and orders relating thereto, except where
the failure to be in such compliance would not be reasonably expected, individually or in the aggregate, to have a Material Adverse Change;
and neither the Company nor any of its Subsidiaries has received any notice from any governmental instrumentality or any third party alleging
any material violation thereof or liability thereunder (including, without limitation, liability for costs of investigating or remediating
sites containing hazardous substances and/or damages to natural resources).
2.35.2 There
has been no storage, generation, transportation, use, handling, treatment, Release or threat of Release of Hazardous Materials (as defined
below) by or caused by the Company or any of its Subsidiaries (or, to the knowledge of the Company, any other entity (including any predecessor)
for whose acts or omissions the Company or any of its Subsidiaries is or could reasonably be expected to be liable) at, on, under or from
any property or facility now or previously owned, operated or leased by the Company or any of its Subsidiaries, or at, on, under or from
any other property or facility, in violation of any Environmental Laws or in a manner or amount or to a location that could reasonably
be expected to result in any liability under any Environmental Law, except for any violation or liability which would not, individually
or in the aggregate, have a Material Adverse Change. “Hazardous Materials” means any material, chemical, substance,
waste, pollutant, contaminant, compound, mixture, or constituent thereof, in any form or amount, including petroleum (including crude
oil or any fraction thereof) and petroleum products, natural gas liquids, asbestos and asbestos containing materials, naturally occurring
radioactive materials, brine, and drilling mud, regulated or which can give rise to liability under any Environmental Law. “Release”
means any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing,
depositing, dispersing, or migrating in, into or through the environment, or in, into from or through any building or structure.
2.36 Real
and Personal Property. Except as set forth in the Registration Statement, the Time of Sale Information and the Prospectus, the
Company and its Subsidiaries have good and marketable title in fee simple to, or have valid rights to lease or otherwise use, all items
of real or personal property which are material to the business of the Company and its Subsidiaries taken as a whole, in each case free
and clear of all liens, encumbrances, security interests, claims and defects that do not, singly or in the aggregate, materially affect
the value of such property and do not interfere with the use made and proposed to be made of such property by the Company or its Subsidiaries;
and all of the leases and subleases material to the business of the Company and its Subsidiaries, considered as one enterprise, and under
which the Company or any of its Subsidiaries holds properties described in the Registration Statement, the Time of Sale Information and
the Prospectus, are in full force and effect, and neither the Company nor any Subsidiary has received any notice of any material claim
of any sort that has been asserted by anyone adverse to the rights of the Company or any Subsidiary under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the Company or such Subsidiary to the continued possession of the leased or
subleased premises under any such lease or sublease, which could result in a Material Adverse Change.
2.37 Contracts
Affecting Capital. There are no transactions, arrangements or other relationships between and/or among the Company, any of its
affiliates (as such term is defined in Rule 405 of the Securities Act Regulations) and any unconsolidated entity, including, but not limited
to, any structured finance, special purpose or limited purpose entity that could reasonably be expected to materially affect the Company’s
or its Subsidiaries’ liquidity or the availability of or requirements for their capital resources required to be described or incorporated
by reference in the Registration Statement, the Time of Sale Information and the Prospectus which have not been described or incorporated
by reference as required.
2.38 Loans
to Directors or Officers. There are no outstanding loans, advances (except normal advances for business expenses in the ordinary
course of business) or guarantees or indebtedness by the Company or its Subsidiaries to or for the benefit of any of the officers or directors
of the Company, its Subsidiaries or any of their respective family members, except as disclosed in the Registration Statement, the Time
of Sale Information and the Prospectus.
2.39 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 Regulations.
2.40 Industry
Data. The statistical and market-related data included in each of the Registration Statement, the Time of Sale Information and
the Prospectus are based on or derived from sources that the Company reasonably and in good faith believes are reliable and accurate or
represent the Company’s good faith estimates that are made on the basis of data derived from such sources.
2.41 Testing-the-Waters
Communications. The Company has not (i) alone engaged in any Testing-the-Waters Communications, other than Testing-the-Waters
Communications with the written consent of the Representative and with entities that are qualified institutional buyers within the meaning
of Rule 144A under the Securities Act or institutions that are accredited investors within the meaning of Rule 501 under the Securities
Act and (ii) authorized anyone other than the Representative to engage in Testing-the-Waters Communications. “Testing-the-Waters
Communication” means any oral or written communication with potential investors undertaken in reliance on Section 5(d) of the
Securities Act. The Company confirms that the Representative has been authorized to act on its behalf in undertaking Testing-the-Waters
Communications. The Company has not distributed any Written Testing-the-Waters Communications other than those listed on Schedule 2-B
hereto. “Written Testing-the-Waters Communication” means any Testing-the-Waters Communication that is a written communication
within the meaning of Rule 405 under the Securities Act.
3. Covenants
of the Company. The Company covenants and agrees as follows:
3.1 Amendments
to Registration Statement. Until the Closing Date, the Company
shall deliver to the Representative, prior to filing, any amendment or supplement to the Registration Statement or Prospectus proposed
to be filed after the Effective Date and not file any such amendment or supplement to which the Representative shall reasonably object
in writing within one Business Day of its receipt thereof.
3.2 Federal
Securities Laws.
3.2.1 Compliance.
Until the later of the Closing Date, the Company,
subject to Section 3.2.2, shall comply in all material respects with the requirements of Rule 430A of the Securities Act Regulations,
and will notify the Representative promptly, and confirm the notice in writing, (i) when any post-effective amendment to the Registration
Statement shall become effective or any amendment or supplement to the Prospectus shall have been filed; (ii) of the receipt of any comments
from the Commission; (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for additional information; (iv) of the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or any post-effective amendment or of any order preventing or suspending the use of any Preliminary Prospectus
or the Prospectus, or of the suspension of the qualification of the Firm Shares for offering or sale in any jurisdiction, or of the initiation
or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(d) or 8(e) of the Securities Act
concerning the Registration Statement; and (v) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act
in connection with the Offering of the Firm Shares. The Company shall effect all filings required under Rule 424(b) of the Securities
Act Regulations, in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and shall take
such steps as it deems reasonably necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b)
was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company shall
use its commercially reasonable efforts to prevent the issuance of any stop order, prevention or suspension and, if any such order is
issued, to obtain the lifting thereof at the earliest possible moment.
3.2.2 Continued
Compliance. Until
the Closing Date, the Company shall comply in all material respects with the Securities
Act, the Securities Act Regulations, the Exchange Act and the Exchange Act Regulations so as to permit the completion of the distribution
of the Firm Shares as contemplated in this Agreement and in the Registration Statement, the Time of Sale Information and the Prospectus.
If at any time when a prospectus relating to the Firm Shares is (or, but for the exception afforded by Rule 172 of the Securities Act
Regulations (“Rule 172”), would be) required by the Securities Act to be delivered in connection with sales of the
Firm Shares, any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters
or for the Company, to (i) amend the Registration Statement in order that the Registration Statement will not include an untrue statement
of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(ii) amend or supplement the Time of Sale Information or the Prospectus in order that the Time of Sale Information or the Prospectus,
as the case may be, will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make
the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser; or (iii)
amend the Registration Statement or amend or supplement the Time of Sale Information or the Prospectus, as the case may be, in order to
comply with the requirements of the Securities Act or the Securities Act Regulations, the Company will promptly (A) give the Representative
notice of such event; (B) prepare any amendment or supplement as may be necessary to correct such statement or omission or to make the
Registration Statement, the Time of Sale Information or the Prospectus comply with such requirements and, a reasonable amount of time
prior to any proposed filing or use, furnish the Representative with copies of any such amendment or supplement and (C) file with the
Commission any such amendment or supplement; provided that the Company shall not file or use any such amendment or supplement to
which the Representative or Representative Counsel shall reasonably object. The Company will furnish to the Underwriters such number of
copies of such amendment or supplement as the Underwriters may reasonably request. The Company has given the Representative notice of
any filings made pursuant to the Exchange Act or the Exchange Act Regulations within 48 hours prior to the Time of Sale. The Company shall
give the Representative notice of its intention to make any such filing from the Time of Sale until the Closing Date and will furnish
the Representative with copies of the related document(s) a reasonable amount of time prior to such proposed filing, as the case may be,
and will not file or use any such document to which the Representative or counsel for the Underwriters shall reasonably object.
3.2.3 Exchange
Act Registration. For a period of two (2) years after the date of this Agreement, the Company shall use its commercially reasonable
efforts to maintain the registration of the shares of Preferred Stock under the Exchange Act. The Company shall not deregister the shares
of Preferred Stock under the Exchange Act without the prior written consent of the Representative.
3.2.4 [Reserved].
3.2.5 Testing-the-Waters
Communications. If at any time following the distribution of any Written Testing-the-Waters Communication there occurred or occurs
an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement
of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of
the circumstances existing at that subsequent time, not misleading, the Company shall promptly notify the Representative and shall promptly
amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or
omission.
3.2.6 Required
Filings. The Company will file the final Prospectus with the Commission within the time periods specified by Rule 424(b) and Rule
430A, 430B or 430C under the Securities Act, will file any Issuer Free Writing Prospectus (including the term sheet substantially in the
form of Schedule 2-A hereto) to the extent required by Rule 433 under the Securities Act; and will file promptly all reports and
any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Firm Shares; and the Company will furnish copies of the Prospectus and each Issuer Free Writing
Prospectus (to the extent not previously delivered) to the Underwriter in New York City prior to 10:00 A.M., New York City time, on the
business day next succeeding the date of this Agreement in such quantities as the Underwriter may reasonably request.
3.3 Delivery
to the Underwriters of Registration Statements. The Company has delivered or made available or shall deliver or make available
to the Representative and Representative Counsel, without charge, signed copies of the Registration Statement as originally filed and
each amendment thereto (including exhibits filed therewith) and signed copies of all consents and certificates of experts, and will also
deliver to the Underwriters, upon request and without charge, a conformed copy of the Registration Statement as originally filed and each
amendment thereto (without exhibits) for each of the Underwriters. The copies of the Registration Statement and each amendment thereto
furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T.
3.4 Delivery
to the Underwriters of Prospectuses. The Company has delivered or made available or will deliver or make available to each Underwriter,
without charge, as many copies of each Preliminary Prospectus as such Underwriter reasonably requested, and the Company hereby consents
to the use of such copies for purposes permitted by the Securities Act. The Company will furnish to each Underwriter, without charge,
during the period when a prospectus relating to the Firm Shares is (or, but for the exception afforded by Rule 172, would be) required
to be delivered under the Securities Act, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may
reasonably request. The Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
3.5 Events
Requiring Notice to the Representative. The Company shall notify the Representative promptly and confirm the notice in writing:
(i) of the issuance by any state securities commission of any proceedings for the suspension of the qualification of the Firm Shares for
offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose; (ii) of the mailing
and delivery to the Commission for filing of any amendment or supplement to the Registration Statement or Prospectus; (iii) of the receipt
of any comments or request for any additional information from the Commission; and (iv) of the happening of any event during the period
described in this Section 3.5 that, in the judgment of the Company, makes any statement of a material fact made in the Registration Statement,
the Time of Sale Information or the Prospectus untrue or that requires the making of any changes in (a) the Registration Statement in
order to make the statements therein not misleading, or (b) in the Time of Sale Information or the Prospectus in order to make the statements
therein, in light of the circumstances under which they were made, not misleading.
3.6 Review
of Financial Statements. For a period of two (2) years after the date of this Agreement, the Company, at its expense, shall cause
its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements
for each of the three fiscal quarters immediately preceding the announcement of any quarterly financial information.
3.7 Listing.
The Company shall use its commercially reasonable efforts to maintain the listing of the shares of Preferred Stock (including the Firm
Shares) on the Exchange for at least two (2) years from the date of this Agreement.
3.8 Reports
to the Representative.
3.8.1 Periodic
Reports, etc. For a period of one (1) year after the date of this Agreement, the Company shall furnish or make available to the Representative
copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders
of any class of its securities and also promptly furnish to the Representative: (i) a copy of each periodic report the Company shall be
required to file with the Commission under the Exchange Act and the Exchange Act Regulations; (ii) a copy of every press release and every
news item and article with respect to the Company or its affairs which was released by the Company and filed under a Form 8-K; (iii) a
copy of each Form 8-K filed by the Company; (iv) a copy of each registration statement filed by the Company under the Securities Act;
and (v) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company
as the Representative may from time to time reasonably request; provided the Representative shall sign, if requested by the Company,
a Regulation FD compliant confidentiality agreement which is reasonably acceptable to the Representative and Representative Counsel in
connection with the Representative’s receipt of such information. Documents filed with the Commission pursuant to its EDGAR system
shall be deemed to have been delivered to the Representative pursuant to this Section 3.8.1.
3.8.2 Transfer
Agent. For a period of one (1) year after the date of this Agreement, the Company shall retain a transfer agent and registrar acceptable
to the Representative (the “Transfer Agent”). Computershare Trust Company, N.A. is acceptable to the Representative
to act as Transfer Agent for the shares of Preferred Stock.
3.9 Payment
of Expenses
3.9.1 General
Expenses Related to the Offering. The Company hereby agrees to pay on the Closing Date, to the extent not paid at the Closing Date,
all expenses incident to the performance of the obligations of the Company under this Agreement, including, but not limited to: (a) all
filing fees and communication expenses relating to the registration of the shares of Preferred Stock to be sold in the Offering with the
Commission; (b) all Public Filing System filing fees associated with the review of the Offering by FINRA; (c) all fees and expenses relating
to the listing of such Firm Shares on the Exchange and such other stock exchanges as the Company and the Representative together determine;
(d) all fees, expenses and disbursements relating to background checks of the Company’s officers and directors; (e) all fees, expenses
and disbursements, if any, relating to the registration or qualification of the Firm Shares under the “blue sky” securities
laws of such states and other jurisdictions as the Representative may reasonably designate if the Offering is commenced on the Over-the-Counter
Bulletin Board; (f) all fees, expenses and disbursements relating to the registration, qualification or exemption of the Firm Shares under
the securities laws of such foreign jurisdictions as the Representative may reasonably designate; (g) the costs of all mailing and printing
of the underwriting documents (including, without limitation, the Underwriting Agreement, any Blue Sky Surveys and, if appropriate, any
Agreement Among Underwriters, Selected Dealers’ Agreement, Underwriters’ Questionnaire and Power of Attorney), Registration
Statements, Prospectuses and all amendments, supplements and exhibits thereto and as many preliminary and final Prospectuses as the Representative
may reasonably deem necessary; (h) the costs of preparing, printing and delivering certificates representing the Firm Shares; (i) fees
and expenses of the transfer agent for the shares of Preferred Stock; (j) stock transfer and/or stamp taxes, if any, payable upon the
transfer of securities from the Company to the Underwriters; (k) the cost associated with the Underwriter’s use of book-building
and compliance software for the Offering; (l) the fees and expenses of the Company’s accountants; (m) the fees and expenses of the
Company’s legal counsel and other agents and representatives; (n) the fees and expenses of the Representative Counsel not to exceed
$75,000; and (o) the Underwriter’s actual accountable “road show” expenses for the Offering; provided, that the maximum
amount that the Company shall pay for items (d), (k), (n) and (o) shall be $250,000. The Representative may deduct from the net proceeds
of the Offering payable to the Company on the Closing Date, the expenses set forth herein to be paid by the Company to the Underwriters,
other than amounts already advanced to the Representative as of the date of this Underwriting Agreement.
3.9.2 Non-accountable
Expenses. The Company further agrees that, in addition to the expenses payable pursuant to Section 3.9.1, on the Closing Date it shall
pay to the Representative, by deduction from the net proceeds of the Offering contemplated herein, a non-accountable expense allowance
equal to one half of one percent (0.5%) of the gross proceeds received by the Company from the sale of the Firm Shares, less the Advance
(as such term is defined in Section 8.3 hereof); provided, however, that in the event that the Offering is terminated, the
Company agrees to reimburse the Underwriters pursuant to Section 8.3 hereof.
3.10 Application
of Net Proceeds. The Company shall apply the net proceeds from the Offering received by it in a manner consistent in all material
respects with the application thereof described under the caption “Use of Proceeds” in the Registration Statement, the Time
of Sale Information and the Prospectus.
3.11 Delivery
of Earnings Statements to Security Holders. The Company shall make generally available to its security holders as soon as practicable,
but not later than the first day of the fifteenth (15th) full calendar month following the date of this Agreement, an earnings
statement (which need not be certified by independent registered public accounting firm unless required by the Securities Act or the Securities
Act Regulations, but which shall satisfy the provisions of Rule 158(a) under Section 11(a) of the Securities Act) covering a period of
at least twelve (12) consecutive months beginning after the date of this Agreement.
3.12 Stabilization.
Neither the Company nor, to its knowledge, any of its employees, directors or stockholders (without the consent of the Representative)
has taken or shall take, directly or indirectly, any action designed to or that has constituted or that might reasonably be expected to
cause or result in, under Regulation M of the Exchange Act, or otherwise, stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Firm Shares.
3.13 Internal
Controls. The Company shall use its best efforts to maintain a system of internal accounting controls sufficient to provide reasonable
assurances that: (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions
are recorded as necessary in order to permit preparation of financial statements in accordance with GAAP and to maintain accountability
for assets; (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 existing assets at reasonable intervals and appropriate action is taken with respect
to any differences.
3.14 Accountants.
As of the date of this Agreement, the Company has retained an independent registered public accounting firm reasonably acceptable to the
Representative, and the Company shall continue to retain a nationally recognized independent registered public accounting firm for a period
of at least three (3) years after the date of this Agreement. The Representative acknowledges that the Auditor is acceptable to the Representative.
3.15 FINRA.
The Company shall advise the Representative (who shall make an appropriate filing with FINRA) if it is or becomes aware that (i) any officer
or director of the Company, (ii) any beneficial owner of 5% or more of any class of the Company’s securities or (iii) any beneficial
owner of the Company’s unregistered equity securities which were acquired during the 180 days immediately preceding the filing of
the Registration Statement is or becomes an affiliate or associated person of a FINRA member participating in the Offering (as determined
in accordance with the rules and regulations of FINRA).
3.16 No
Fiduciary Duties. The Company acknowledges and agrees that the Underwriters’ responsibility to the Company is solely contractual
in nature and that none of the Underwriters or their affiliates or any selling agent shall be deemed to be acting in a fiduciary capacity,
or otherwise owes any fiduciary duty to the Company or any of its affiliates in connection with the Offering and the other transactions
contemplated by this Agreement.
3.17 [Reserved].
3.18 [Reserved].
3.19 Blue
Sky Qualifications. The Company shall use its commercially reasonable efforts, in cooperation with the Underwriters, if necessary,
to qualify the Firm Shares for offering and sale under the applicable securities laws of such states and other jurisdictions (domestic
or foreign) as the Representative may designate and to maintain such qualifications in effect so long as required to complete the distribution
of the Firm Shares; 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.
3.20 Reporting
Requirements. The Company, during the period when a prospectus relating to the Firm Shares is (or, but for the exception afforded
by Rule 172, would be) required to be delivered under the Securities Act, will use its commercially reasonable efforts to file all documents
required to be filed with the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act and Exchange
Act Regulations. Additionally, the Company shall report the use of proceeds from the issuance of the Firm Shares as may be required under
Rule 463 under the Securities Act Regulations.
3.21 [Reserved].
4. Conditions
of Underwriters’ Obligations. The obligations of the Underwriters to purchase and pay for the Firm Shares, as provided herein,
shall be subject to (i) the continuing accuracy of the representations and warranties of the Company as of the date hereof and as of the
Closing Date; (ii) the accuracy of the statements of officers of the Company made pursuant to the provisions hereof; (iii) the performance
by the Company of its obligations hereunder; and (iv) the following conditions:
4.1 Regulatory
Matters.
4.1.1 Registration
Compliance; No Stop Order. No order suspending the effectiveness of the Registration Statement shall be in effect and no proceeding
for such purpose pursuant to Section 8A under the Securities Act shall be pending before or, to the knowledge of the Company, threatened
by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Securities
Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance
with Section 3.2.6 hereof; and all requests by the Commission for additional information shall have been complied with to the
reasonable satisfaction of the Underwriter.
4.1.2 FINRA
Clearance. On or before the date of this Agreement, the Representative shall have received clearance from FINRA as to the amount of
compensation allowable or payable to the Underwriters as described in the Registration Statement.
4.1.3 Exchange
Clearance. On the Closing Date, the Company’s shares of Preferred Stock, including the Firm Shares, shall have been approved
for listing on the Exchange, subject only to official notice of issuance.
4.2 Company
Counsel Matters.
4.2.1 Closing
Date Opinion of Counsel. On the Closing Date, the Representative shall have received the favorable opinion of Olshan Frome Wolosky
LLP, counsel to the Company, dated the Closing Date and addressed to the Representative, substantially in the form of Exhibit A
attached hereto.
4.2.2 Reliance.
In rendering such opinions, such counsel may rely: (i) as to matters involving the application of laws other than the laws of the United
States and jurisdictions in which they are admitted, to the extent such counsel deems proper and to the extent specified in such opinion,
if at all, upon an opinion or opinions (in form and substance reasonably satisfactory to the Representative) of other counsel reasonably
acceptable to the Representative, familiar with the applicable laws; and (ii) as to matters of fact, to the extent they deem proper, on
certificates or other written statements of officers of the Company and officers of departments of various jurisdictions having custody
of documents respecting the corporate existence or good standing of the Company, provided that copies of any such statements or
certificates shall be delivered to Representative Counsel if requested.
4.3 Comfort
Letters.
4.3.1 Cold
Comfort Letter. Prior to the Closing Date you shall have received a cold comfort letter containing statements and information of the
type customarily included in accountants’ comfort letters with respect to the financial statements and certain financial information
contained in the Registration Statement, the Time of Sale Information and the Prospectus, addressed to the Representative and in form
and substance satisfactory in all respects to you, to the Auditor, dated as of the date of this Agreement.
4.3.2 Bring-down
Comfort Letter. At the Closing Date, the Representative shall have received from each of the Auditor and BDO a letter, dated as of
the Closing Date, to the effect that the Auditor reaffirms the statements made in the letter furnished pursuant to Section 4.3.1, except
that the specified date referred to shall be a date not more than three (3) business days prior to the Closing Date.
4.4 Officers’
Certificates.
4.4.1 Officers’
Certificate. The Company shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive
Officer and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the Time of
Sale Information, any Issuer Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statement and each amendment
thereto, as of the Time of Sale and as of the Closing Date did not include any untrue statement of a material fact and did not omit a
material fact required to be stated therein or necessary to make the statements therein not misleading, and the Time of Sale Information,
as of the Time of Sale and as of the Closing Date, any Issuer Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus
and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement
of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
in which they were made, not misleading, (ii) since the effective date of the Registration Statement, no event has occurred which should
have been set forth in a supplement or amendment to the Registration Statement, the Time of Sale Information or the Prospectus, (iii)
to the best of their knowledge, after reasonable inquiry, as of the Closing Date, the representations and warranties of the Company in
this Agreement are true and correct and the Company has complied with all agreements and satisfied all conditions on its part to be performed
or satisfied hereunder at or prior to the Closing Date, and (iv) there has not been, subsequent to the date of the most recent audited
financial statements included or incorporated by reference in the Time of Sale Information, a Material Adverse Change, except as set forth
in the Prospectus.
4.4.2 Secretary’s
Certificate. At each of the Closing Date, the Representative shall have received a certificate of the Company signed by the Secretary
of the Company, dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified
and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full
force and effect and have not been modified; (iii) as to the accuracy and completeness of all correspondence between the Company or its
counsel and the Commission; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate
shall be attached to such certificate.
4.5 No
Material Changes. Prior to and on the Closing Date: (i) there shall have been no Material Adverse Change in the condition or prospects
or the business activities, financial or otherwise, of the Company from the latest dates as of which such condition is set forth in the
Registration Statement, the Time of Sale Information and the Prospectus; (ii) no action, suit or proceeding, at law or in equity, shall
have been pending or threatened against the Company or any Insider before or by any court or federal or state commission, board or other
administrative agency wherein an unfavorable decision, ruling or finding may reasonably be expected to cause a Material Adverse Change,
except as set forth in the Registration Statement, the Time of Sale Information and the Prospectus; (iii) no stop order shall have been
issued under the Securities Act and no proceedings therefor shall have been initiated or threatened by the Commission; and (iv) the Registration
Statement, the Time of Sale Information and the Prospectus and any amendments or supplements thereto shall contain all material statements
which are required to be stated therein in accordance with the Securities Act and the Securities Act Regulations and shall conform in
all material respects to the requirements of the Securities Act and the Securities Act Regulations, and neither the Registration Statement,
the Time of Sale Information nor the Prospectus nor any amendment or supplement thereto shall contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
4.6 [Reserved].
4.7 Additional
Documents. At the Closing Date, Representative Counsel shall have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling Representative Counsel to deliver an opinion to the Underwriters, or in order to evidence
the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the Firm Shares as herein contemplated shall be satisfactory in form
and substance to the Representative and Representative Counsel.
5. Indemnification.
5.1 Indemnification
of the Underwriters.
5.1.1 General.
Subject to the conditions set forth below, the Company agrees to indemnify and hold harmless each Underwriter, its affiliates and each
of its and their respective directors, officers, members, employees, representatives and agents and each person, if any, who controls
any such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively the “Underwriter
Indemnified Parties,” and each an “Underwriter Indemnified Party”), against any and all loss, liability,
claim, damage and expense whatsoever (including but not limited to any and all legal or other expenses reasonably incurred in investigating,
preparing or defending against any litigation, commenced or threatened, or any claim whatsoever, whether arising out of any action between
any of the Underwriter Indemnified Parties and the Company or between any of the Underwriter Indemnified Parties and any third party,
or otherwise) to which they or any of them may become subject under the Securities Act, the Exchange Act or any other statute or at common
law or otherwise or under the laws of foreign countries, arising out of or based upon any untrue statement or alleged untrue statement
of a material fact contained in (i) the Registration Statement, the Time of Sale Information, the Preliminary Prospectus, the Prospectus,
or in any Issuer Free Writing Prospectus or in any Written Testing-the-Waters Communication (as from time to time each may be amended
and supplemented); (ii) any materials or information provided to investors by, or with the approval of, the Company in connection with
the marketing of the Offering, including any “road show” or investor presentations made to investors by the Company (whether
in person or electronically); or (iii) any application or other document or written communication (in this Section 5, collectively called
“application”) executed by the Company or based upon written information furnished by the Company in any jurisdiction in order
to qualify the Firm Shares under the securities laws thereof or filed with the Commission, any state securities commission or agency,
the Exchange or any other national securities exchange; or the omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading,
unless such statement or omission was made in reliance upon, and in conformity with, the Underwriters’ Information. With respect
to any untrue statement or omission or alleged untrue statement or omission made in the Time of Sale Information, the indemnity agreement
contained in this Section 5.1.1 shall not inure to the benefit of any Underwriter Indemnified Party to the extent that any loss, liability,
claim, damage or expense of such Underwriter Indemnified Party results from the fact that a copy of the Prospectus was not given or sent
to the person asserting any such loss, liability, claim or damage at or prior to the written confirmation of sale of the Firm Shares to
such person as required by the Securities Act and the Securities Act Regulations, and if the untrue statement or omission has been corrected
in the Prospectus, unless such failure to deliver the Prospectus was a result of non-compliance by the Company with its obligations under
Section 3.3 hereof.
5.1.2 Procedure.
If any action is brought against an Underwriter Indemnified Party in respect of which indemnity may be sought against the Company pursuant
to Section 5.1.1, such Underwriter Indemnified Party shall promptly notify the Company in writing of the institution of such action and
the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval
of such Underwriter Indemnified Party) and payment of actual expenses. Such Underwriter Indemnified Party shall have the right to employ
its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter Indemnified
Party unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in
connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such
action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them
which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct
the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of
not more than one additional firm of attorneys selected by the Underwriter Indemnified Party (in addition to local counsel) shall be borne
by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter Indemnified Party shall assume the defense
of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action, which approval
shall not be unreasonably withheld or delayed.
5.2 Indemnification
of the Company. Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless the Company, its directors,
its officers who signed the Registration Statement and persons who control 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 expense described in the foregoing indemnity
from the Company to the several Underwriters, as incurred, but only with respect to untrue statements or omissions made in the Registration
Statement, any Preliminary Prospectus, the Time of Sale Information or Prospectus or any amendment or supplement thereto or in any application,
in reliance upon, and in strict conformity with, the Underwriters’ Information. In case any action shall be brought against the
Company or any other person so indemnified based on any Preliminary Prospectus, the Registration Statement, the Time of Sale Information
or Prospectus or any amendment or supplement thereto or any application, and in respect of which indemnity may be sought against any Underwriter,
such Underwriter shall have the rights and duties given to the Company, and the Company and each other person so indemnified shall have
the rights and duties given to the several Underwriters by the provisions of Section 5.1.2. The Company agrees to promptly notify the
Representative of the commencement of any litigation or proceedings against the Company or any of its officers, directors or any person,
if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, in connection
with the issuance and sale of the Firm Shares or in connection with the Registration Statement, the Time of Sale Information, the Prospectus,
or any Issuer Free Writing Prospectus or any Written Testing-the-Waters Communication.
5.3 Contribution.
5.3.1 Contribution
Rights. If the indemnification provided for in this Section 5 shall for any reason be unavailable to or insufficient to hold harmless
an indemnified party under Section 5.1 or 5.2 in respect of any loss, claim, damage or liability, or any action in respect thereof, referred
to therein, then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable
by such indemnified party as a result of such loss, claim, damage or liability, or action in respect thereof, (i) in such proportion as
shall be appropriate to reflect the relative benefits received by the Company, on the one hand, and the Underwriters, on the other, from
the Offering of the Firm Shares, or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company,
on the one hand, and the Underwriters, on the other, with respect to the statements or omissions that resulted in such loss, claim, damage
or liability, or action in respect thereof, as well as any other relevant equitable considerations. The relative benefits received by
the Company, on the one hand, and the Underwriters, on the other, with respect to such Offering shall be deemed to be in the same proportion
as the total net proceeds from the Offering of the Firm Shares purchased under this Agreement (before deducting expenses) received by
the Company, as set forth in the table on the cover page of the Prospectus, on the one hand, and the total underwriting discounts and
commissions received by the Underwriters with respect to the shares of the Preferred Stock purchased under this Agreement, as set forth
in the table on the cover page of the Prospectus, on the other hand. The relative fault shall be determined by reference to whether the
untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters, the intent of the parties and their relative knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section 5.3.1 were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such
purpose) 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, damage or liability, or action in respect thereof, referred to
above in this Section 5.3.1 shall be deemed to include, for purposes of this Section 5.3.1, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this
Section 5.3.1 in no event shall an Underwriter be required to contribute any amount in excess of the amount by which the total underwriting
discounts and commissions received by such Underwriter with respect to the Offering of the Firm Shares exceeds the amount of any damages
that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
5.3.2 Contribution
Procedure. Within fifteen (15) days after receipt by any party to this Agreement (or its representative) of notice of the commencement
of any action, suit or proceeding, such party will, if a claim for contribution in respect thereof is to be made against another party
(“contributing party”), notify the contributing party of the commencement thereof, but the failure to so notify the contributing
party will not relieve it from any liability which it may have to any other party other than for contribution hereunder. In case any such
action, suit or proceeding is brought against any party, and such party notifies a contributing party or its representative of the commencement
thereof within the aforesaid 15 days, the contributing party will be entitled to participate therein with the notifying party and any
other contributing party similarly notified. Any such contributing party shall not be liable to any party seeking contribution on account
of any settlement of any claim, action or proceeding affected by such party seeking contribution on account of any settlement of any claim,
action or proceeding affected by such party seeking contribution without the written consent of such contributing party. The contribution
provisions contained in this Section 5.3.2 are intended to supersede, to the extent permitted by law, any right to contribution under
the Securities Act, the Exchange Act or otherwise available. Each Underwriter’s obligations to contribute pursuant to this Section
5.3 are several and not joint.
6. Defaults.
6.1 Default
by an Underwriter.
6.1.1 Default
Not Exceeding 10% of Firm Shares. If any Underwriter or Underwriters shall default in its or their obligations to purchase the Firm
Shares, and if the number of the Firm Shares with respect to which such default relates does not exceed in the aggregate 10% of the number
of Firm Shares that all Underwriters have agreed to purchase hereunder, then such Firm Shares to which the default relates shall be purchased
by the non-defaulting Underwriters in proportion to their respective commitments hereunder.
6.1.2 Default
Exceeding 10% of Firm Shares. In the event that the default addressed in Section 6.1 relates to more than 10% of the Firm Shares,
the Representative may in its discretion arrange for themselves or for another party or parties to purchase such Firm Shares to which
such default relates on the terms contained herein. If, within one (1) Business Day after such default relating to more than 10% of the
Firm Shares, the Representative does not arrange for the purchase of such Firm Shares, then the Company shall be entitled to a further
period of one (1) Business Day within which to procure another party or parties reasonably satisfactory to the Representative to purchase
said Firm Shares on such terms. In the event that neither the Representative nor the Company arranges for the purchase of the Firm Shares
to which a default relates as provided in this Section 6, this Agreement will automatically be terminated by the Representative or the
Company without liability on the part of the Company (except as provided in Sections 3.8 and 5 hereof) or the several Underwriters (except
as provided in Section 5 hereof); provided, however, that nothing herein shall relieve a defaulting Underwriter of its liability,
if any, to the other Underwriters and to the Company for damages occasioned by its default hereunder.
6.1.3 Postponement
of Closing Date. In the event that the Firm Shares to which the default relates are to be purchased by the non-defaulting Underwriters,
or are to be purchased by another party or parties as aforesaid, the Representative or the Company shall have the right to postpone the
Closing Date for a reasonable period, but not in any event exceeding five (5) Business Days, in order to effect whatever changes may thereby
be made necessary in the Registration Statement, the Time of Sale Information or the Prospectus or in any other documents and arrangements,
and the Company agrees to file promptly any amendment to the Registration Statement, the Time of Sale Information or the Prospectus that
in the opinion of counsel for the Underwriter may thereby be made necessary. The term “Underwriter” as used in this
Agreement shall include any party substituted under this Section 6 with like effect as if it had originally been a party to this Agreement
with respect to such shares of Preferred Stock.
7. Additional
Covenants.
7.1 Board
Composition and Board Designations. The Company shall ensure that: (i) the qualifications of the persons serving as members of
the Board of Directors and the overall composition of the Board comply with the Sarbanes-Oxley Act, with the Exchange Act and with the
listing rules of the Exchange or any other national securities exchange, as the case may be, in the event the Company seeks to have its
Firm Shares listed on another exchange or quoted on an automated quotation system, and (ii) if applicable, at least one member of the
Audit Committee of the Board of Directors qualifies as an “audit committee financial expert,” as such term is defined under
Regulation S-K and the listing rules of the Exchange.
7.2 Prohibition
on Press Releases and Public Announcements. The Company shall not issue press releases or engage in any other publicity, without
the Representative’s prior written consent (which consent shall not be unreasonably withheld or delayed), for a period ending at
5:00 p.m., Eastern time, on the first (1st) Business Day following the forty-fifth (45th) day after the Closing
Date, other than normal and customary releases issued in the ordinary course of the Company’s business or as required by applicable
law or regulation.
8. Effective
Date of this Agreement and Termination Thereof.
8.1 Effective
Date. This Agreement shall become effective when both the Company, and the Representative have executed the same and delivered
counterparts of such signatures to the other party.
8.2 Termination.
The Representative shall have the right to terminate this Agreement at any time prior to any Closing Date, (i) if any domestic or international
event or act or occurrence has materially disrupted, or in your reasonable opinion will in the immediate future materially disrupt, general
securities markets in the United States; (ii) if trading on the New York Stock Exchange or the Nasdaq Stock Market LLC shall have been
suspended or materially limited, or minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities
shall have been required by FINRA or by order of the Commission or any other government authority having jurisdiction; (iii) if the United
States shall have become involved in a new war or an increase in major hostilities; (iv) if a banking moratorium has been declared by
a New York State or federal authority; (v) if a moratorium on foreign exchange trading has been declared which materially adversely impacts
the United States securities markets; (vi) if the Company shall have sustained a material loss by fire, flood, accident, hurricane, earthquake,
theft, sabotage or other calamity or malicious act which, whether or not such loss shall have been insured, will, in your reasonable opinion,
make it inadvisable to proceed with the delivery of the Firm Shares; or (vii) if the Company is in material breach of any of its representations,
warranties or covenants hereunder; or (viii) if the Representative shall have become aware after the date hereof of a Material Adverse
Change, or such adverse material change in general market conditions as in the Representative’s reasonable judgment would make it
impracticable to proceed with the offering, sale and/or delivery of the Firm Shares or to enforce contracts made by the Underwriters for
the sale of the Firm Shares.
8.3 Expenses.
Notwithstanding anything to the contrary in this Agreement, except in the case of a default by the Underwriters, pursuant to Section 6.1.2
above, in the event that this Agreement shall not be carried out for any reason whatsoever, within the time specified herein or any extensions
thereof pursuant to the terms herein, the Company shall be obligated to pay to the Underwriters their actual and accountable out-of-pocket
expenses related to the transactions contemplated herein then due and payable (including the fees and disbursements of Representative
Counsel) up to $250,000, inclusive of any advance for accountable expenses previously paid by the Company to the Representative (the “Advance”)
and upon demand the Company shall pay the full amount thereof to the Representative on behalf of the Underwriters; provided, however,
that such expense cap in no way limits or impairs the indemnification and contribution provisions of this Agreement. Notwithstanding the
foregoing, any advance received by the Representative will be reimbursed to the Company to the extent not actually incurred in compliance
with FINRA Rule 5110(f)(2)(C).
8.4 Indemnification.
Notwithstanding any contrary provision contained in this Agreement, any election hereunder or any termination of this Agreement, and whether
or not this Agreement is otherwise carried out, the provisions of Section 5 shall remain in full force and effect and shall not be in
any way affected by, such election or termination or failure to carry out the terms of this Agreement or any part hereof.
8.5 Representations,
Warranties, Agreements to Survive. All representations, warranties and agreements contained in this Agreement or in certificates
of officers of the Company submitted pursuant hereto, shall remain operative and in full force and effect regardless of (i) any investigation
made by or on behalf of any Underwriter or its Affiliates or selling agents, any person controlling any Underwriter, its officers or directors
or any person controlling the Company or (ii) delivery of and payment for the Firm Shares.
9. Miscellaneous.
9.1 Notices.
All communications hereunder, except as herein otherwise specifically provided, shall be in writing and shall be mailed (registered or
certified mail, return receipt requested), personally delivered or sent by facsimile transmission or email with confirmation and shall
be deemed given when so delivered or faxed or emailed with confirmation or if mailed, two (2) days after such mailing.
If to the Representative:
Alexander Capital, L.P.
17 State Street, 5th Floor
New York, NY 10004
with a copy (which shall not constitute notice) to:
Cozen O’Connor
33 South 6th Street, Suite 3800
Minneapolis, Minnesota 55402
Attn: Christopher J. Bellini, Esq.
Email: [***]
If to the Company:
BitNile Holdings, Inc.
11411 Southern Highlands Parkway, Suite 240
Las Vegas, NV 89141
Attention: Mr. William B. Horne, CEO
Email: [***]
with a copy (which shall not constitute notice) to:
Henry C.W. Nisser, Esq.
President and General Counsel
BitNile Holdings, Inc.
100 Park Avenue, Suite 1658A
New York, NY 10017
Email: [***]
and
Olshan Frome Wolosky LLP
1325 Avenue of the Americas, 15th Floor
New York, NY 10019
Attention: Spencer G. Feldman, Esq.
Email: [***]
9.2 Headings.
The headings contained herein are for the sole purpose of convenience of reference, and shall not in any way limit or affect the meaning
or interpretation of any of the terms or provisions of this Agreement.
9.3 Amendment.
This Agreement may only be amended by a written instrument executed by each of the parties hereto.
9.4 Entire
Agreement. This Agreement (together with the other agreements and documents being delivered pursuant to or in connection with
this Agreement) constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and thereof, and supersedes
all prior agreements and understandings of the parties, oral and written, with respect to the subject matter hereof.
9.5 Binding
Effect. This Agreement shall inure solely to the benefit of and shall be binding upon the Representative, the Underwriters, the
Company, the controlling persons, directors and officers referred to in Section 5 hereof, and their respective successors, legal representatives,
heirs and assigns, and no other person shall have or be construed to have any legal or equitable right, remedy or claim under or in respect
of or by virtue of this Agreement or any provisions herein contained. The term “successors and assigns” shall not include
a purchaser, in its capacity as such, of securities from any of the Underwriters.
9.6 Governing
Law; Consent to Jurisdiction; Trial by Jury. This Agreement shall be governed by and construed and enforced in accordance with
the laws of the State of New York, without giving effect to conflict of laws principles thereof. The Company hereby agrees that any action,
proceeding or claim against it arising out of, or relating in any way to this Agreement shall be brought and enforced in the New York
Supreme Court, County of New York, or in the United States District Court for the Southern District of New York, and irrevocably submits
to such jurisdiction, which jurisdiction shall be exclusive. The Company hereby waives any objection to such exclusive jurisdiction and
that such courts represent an inconvenient forum. Any such process or summons to be served upon the Company may be served by transmitting
a copy thereof by registered or certified mail, return receipt requested, postage prepaid, addressed to it at the address set forth in
Section 9.1 hereof. Such mailing shall be deemed personal service and shall be legal and binding upon the Company in any action, proceeding
or claim. The Company agrees that the prevailing party(ies) in any such action shall be entitled to recover from the other party(ies)
all of its reasonable attorneys’ fees and expenses relating to such action or proceeding and/or incurred in connection with the
preparation therefor. The Company (on its behalf and, to the extent permitted by applicable law, on behalf of its stockholders and affiliates)
and each of the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial
by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
9.7 Execution
in Counterparts. This Agreement may be executed in one or more counterparts, and by the different parties hereto in separate counterparts,
each of which shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement, and shall
become effective when one or more counterparts has been signed by each of the parties hereto and delivered to each of the other parties
hereto. Delivery of a signed counterpart of this Agreement by facsimile or email/pdf transmission shall constitute valid and sufficient
delivery thereof.
9.8 Waiver,
etc. The failure of any of the parties hereto to at any time enforce any of the provisions of this Agreement shall not be deemed
or construed to be a waiver of any such provision, nor to in any way effect the validity of this Agreement or any provision hereof or
the right of any of the parties hereto to thereafter enforce each and every provision of this Agreement. No waiver of any breach, non-compliance
or non-fulfillment of any of the provisions of this Agreement shall be effective unless set forth in a written instrument executed by
the party or parties against whom or which enforcement of such waiver is sought; and no waiver of any such breach, non-compliance or non-fulfillment
shall be construed or deemed to be a waiver of any other or subsequent breach, non-compliance or non-fulfillment.
[Signature Page Follows]
If the foregoing correctly
sets forth the understanding between the Underwriters and the Company, please so indicate in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between us.
| |
Very truly yours, |
| |
|
| |
BITNILE HOLDINGS, INC. |
| |
|
| |
|
| |
By: |
/s/ William B. Horne |
| |
|
Name: William B. Horne |
| |
|
Title: Chief Executive Officer |
Confirmed as of the date first written above mentioned,
on behalf of itself and as Representative of the several
Underwriters named on Schedule 1 hereto:
| ALEXANDER CAPITAL, L.P. |
|
| |
|
| |
|
| By: |
/s/ Jonathan Gazdak |
|
|
Jonathan Gazdak |
|
|
Managing Director |
|
[BitNile Holdings, Inc. – Underwriting
Agreement Signature Page]
SCHEDULE 1
| Underwriter | |
Total Number
of Firm Shares to
be Purchased | |
| | |
| |
| Alexander Capital, L.P. | |
| 123,423 | |
| | |
| | |
| TOTAL | |
| 123,423 | |
SCHEDULE 2-A
Term Sheet
| Issuer |
BitNile Holdings, Inc. (“NILE” or the “Company”) |
| |
|
| Placement Agent |
Alexander Capital, L.P. a licensed broker-dealer with FINRA |
| |
|
| Security: |
13.00% Series D Cumulative Redeemable Perpetual Preferred Stock (“Series D Preferred Stock”) |
| |
|
| Ticker: |
NILE PRD (NYSE American) |
| |
|
| Principal Amount: |
$3,085,575 |
| |
|
| Price: |
$25.00/share |
| |
|
| Par Value: |
$25.00/share |
| |
|
| Dividend Rate: |
13.00% per annum ($3.25/share) |
| |
|
| Dividend Payments: |
Monthly in arrears, on the last day of the month ($0.2708333/share) |
| |
|
| Term/Maturity Date: |
Series D Preferred Stock is perpetual and has no maturity date |
| |
|
| Redemption Feature: |
Prior to the date that is three years after the initial issuance, the Series D Preferred Stock may be redeemed at NILE’s option, in whole or in part, at any time or from time to time, at a redemption price of $25.50 per share of Series D Preferred Stock, plus any accumulated and unpaid dividends (whether or not declared) on the Series D Preferred Stock up to, but not including, the date of such redemption, upon written notice, as provided in the prospectus. On and after the date that is three years following the initial issuance, the redemption price decreases to $25.00 per share. |
| |
|
| Conversion into Common: |
The Preferred is not convertible into the common stock of the Company. |
| |
|
| Confidentiality |
The existence of this term sheet and the individual terms and conditions are of a confidential nature and shall not be disclosed to anyone, except to the Company, the investors and their respective legal advisors |
SCHEDULE 2-B
Written Testing-the-Waters Communications
None
SCHEDULE 3
Subsidiaries and Affiliates
| 1. | Gresham Worldwide, Inc. (f/k/a DPW Technologies Group, Inc.), a Delaware corporation |
| 2. | Ault Alliance, Inc. (f/k/a DPW Financial Group, Inc.), a Delaware corporation |
| 3. | TurnOnGreen, Inc. (f/k/a Coolisys Technologies Corp.), a Nevada corporation |
| 4. | Microphase Corporation, a Delaware corporation |
| 5. | Digital Power Corporation, a Delaware corporation |
| 6. | Digital Power Lending, LLC, a California limited liability company |
| 7. | Gresham Power Electronics Ltd. (f/k/a/ Digital Power Limited), a company organized under the laws of England and Wales |
| 8. | BitNile, Inc., a Nevada corporation |
| 9. | Enertec Systems 2001 Ltd., an Israeli corporation |
| 10. | Relec Electronics Ltd., a company organized under the laws of England and Wales |
| 11. | Imperalis Holding Corp., a Nevada corporation |
| 12. | Tabard Holdings Inc., a Delaware corporation |
| 13. | 456 Lux Hotel NYC, LLC, a Delaware limited liability company |
| 14. | Alliance Cloud Services, LLC, a Delaware limited liability company |
| 15. | Ault Global Real Estate Equities, Inc., a Nevada corporation |
| 16. | Ault Global Real Estate Equities, LLC, a Delaware limited liability company |
| 17. | Ault Disruptive Technologies Company, LLC, a Delaware limited liability company |
| 18. | Ault Disruptive Technologies Corporation, a Delaware corporation |
| 19. | Third Avenue Apartments, LLC, a Delaware limited liability company |
| 20. | Agree Madison, LLC, a Delaware limited liability company |
| 21. | Watership Corp., a Nevada corporation |
| 22. | Ault Media Group, Inc., a Nevada corporation |
| 23. | FlexiSphere Acquisition Corp., a Delaware corporation |
| 24. | Digital Farms, Inc., a Delaware corporation |
| 25. | I. AM Inc., a Nevada corporation |
| 26. | It’sLikeFashion.com, Inc., a Delaware corporation |
| 27. | Flashpoint Digital Media, LLC, a Delaware limited liability company |
| 28. | Spyglass Hill Capital Lending Corp., a Delaware corporation |
| 29. | 7675 Walton, LLC, a Delaware limited liability company |
| 30. | 1801 Deming, LLC, a Delaware limited liability company |
| 31. | 2226 Deming, LLC, a Delaware limited liability company |
| 32. | 8400 Market, LLC, a Delaware limited liability company |
EXHIBIT A
Form of Opinion of Counsel to the Company
[***]
A-1
