Exhibit 1.1
EXECUTION VERSION
INVENTERGY GLOBAL, INC.
PLACEMENT AGENCY AGREEMENT
October 6, 2016
Chardan Capital Markets, LLC
150 East 58th Street, 28th Fl
New York, NY 10155
Ladies and Gentlemen:
Inventergy Global,
Inc., a Delaware Corporation (the “Company”), proposes, subject to the terms and conditions herein, to issue
and sell up to an aggregate of 6,000,000 shares (the “Shares”) of Common Stock of the Company, par value $0.001
per share (the “Common Stock”), warrants to purchase up to an aggregate of 6,000,000 shares of Common Stock
(the “Warrants”), and up to an aggregate of 6,000,000 shares of Common Stock issuable from time to time upon
exercise of the Warrants (the “Warrant Shares”) to certain investors (each an “Investor”
and, collectively, the “Investors”), in an offering under its registration statement on Form S-1 (Registration
No. 333-211211). We are offering one Share together with one Warrant (the Shares and the Warrants, together, the “Securities”)
with each whole Warrant exercisable for one Warrant Share. The Securities are more fully described in the Prospectus (as defined
below). The Company desires to engage Chardan Capital Markets, LLC (“Chardan”) in connection with such issuance
and sale of the Securities.
The Company hereby
confirms its agreement with you as follows:
1. Agreement
to Act as Placement Agent.
(a) On
the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions
of this Placement Agency Agreement (this “Agreement”) between the Company and you, Chardan shall be the Company’s
exclusive placement agent (in such capacity, the “Placement Agent”), on a best efforts basis, in connection
with the issuance and sale by the Company of the Securities to the Investors in a proposed offering under the Registration Statement
(as defined below), with the terms of the offering to be subject to market conditions and negotiations between the Company, the
Placement Agent and the prospective Investors (such offering shall be referred to herein as the “Offering”). As
compensation for services rendered, and provided that any of the Securities are sold to Investors in the Offering, on the Closing
Date (as defined below) of the Offering, the Company shall pay to the Placement Agent an amount in cash equal to 8.0% of the gross
proceeds received by the Company from the sale of the Securities to all Investors as well as a warrant to purchase the number of
shares of Common Stock equal to 4% of the Common Stock issued in the Offering (the “Placement Fee”). The
sale of the Securities shall be made pursuant to securities purchase agreements in the form included as Exhibit A hereto
(the “Securities Purchase Agreements”) on the terms described on Exhibit B hereto. The Company
shall have the sole right to accept offers to purchase the Securities and may reject any such offer in whole or in part. Notwithstanding
the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and
without any obligation to do so, purchase Securities as a principal; provided, however, that any such purchases by the Placement
Agent (or its affiliates) shall be fully disclosed to the Company and approved by the Company in accordance with the previous sentence.
(b) This
Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securities, and the Placement Agent
shall have no authority to bind the Company. The Placement Agent shall act on a reasonable best efforts basis and does
not guarantee that it will be able to raise new capital in the Offering. The Placement Agent may retain other brokers
or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of the Placement
Fee. Prior to the earlier of (i) the date on which this Agreement is terminated and (ii) the Closing Date (as defined
below), the Company shall not, without the prior written consent of the Placement Agent, solicit or accept offers to purchase any
securities of the Company (other than pursuant to the grant of options or restricted stock awards under the Company’s equity
compensation plans or the exercise of options or warrants to purchase Common Stock that are outstanding at the date hereof) otherwise
than through the Placement Agent in accordance herewith.
(c) The
Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any
duties of the Placement Agent with respect to investment banking services to the Company, including the offering of the Securities
contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly
set forth herein, and shall be owed solely to the Company. Each party disclaims any intention to impose any fiduciary
or similar duty on the other. Additionally, the Placement Agent has not advised, nor is it advising, the Company or any other person
as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated
hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making
its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no
responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the
transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit
of the Placement Agent and has not been and shall not be on behalf of the Company or any other person. It is understood
that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering.
Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial
interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company
hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement
Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment
of the purchase price for, and delivery of, the Securities shall be made at a closing (the “Closing”) at the
offices of Pryor Cashman, LLP, counsel for the Placement Agent, located at 7 Times Square, New York, New York, at 10:00 a.m., local
time, as soon as practicable after the determination of the public offering price of the Securities, but not later than October
11, 2016 except as otherwise agreed upon by the Company and the Placement Agent (such date of payment and delivery being herein
called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred
simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Securities Purchase
Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered
to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations
to deliver Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless
against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Company.
(e) On
the Closing Date, (i) the Investors will wire the purchase price for their respective Securities to the Company pursuant to the
terms of the Securities Purchase Agreements and the Company will wire the amount owed to the Placement Agent as provided in this
Agreement and (ii) the Company shall deliver, or cause to be delivered, the Securities to the Investors, with the delivery of the
Shares to be made, if possible, through the facilities of The Depository Trust Company’s DWAC system, and the delivery of
the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Securities Purchase Agreement.
(f) The
Securities shall be registered in such names and in such denominations as the Placement Agent shall request by written notice to
the Company.
2. Representations,
Warranties and Agreements of the Company.
The Company hereby
represents, warrants and covenants to the Placement Agent as of the date hereof, and as of the Closing Date of the Offering, as
follows:
(a) Registration
Statement.
(i) The
Company has prepared and filed with the Securities and Exchange Commission (the “Commission”) a registration
statement on Form S-1 (File No. 333-211211) under the Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the “Securities Act”), and such amendments to such registration statement
as may have been required to the date of this Agreement. Such registration statement has been declared effective by the Commission.
Each part of such registration statement, at any given time, including amendments thereto at such time, the exhibits and any schedules
thereto at such time, the documents incorporated by reference therein pursuant to Item 12 of Form S-1 under the Securities Act
at such time and the documents and information otherwise deemed to be a part thereof or included therein by Rule 430A, 430B or
430C under the Securities Act or otherwise pursuant to the Securities Act at such time, is herein called the “Registration
Statement.” Any registration statement filed by the Company pursuant to Rule 462(b) under the Securities Act is called the
“Rule 462(b) Registration Statement” and, from and after the date and time of filing of the Rule 462(b) Registration
Statement, the term “Registration Statement” shall include the Rule 462(b) Registration Statement. The Company and
the transactions contemplated by this Agreement meet the requirements and comply with the conditions for the use of Form S-1 under
the Securities Act. The offering of the Securities by the Company complies with the applicable requirements of Rule 415 under the
Securities Act. The Company has complied with all requests of the Commission for additional or supplemental information.
(ii) No
stop order preventing or suspending use of the Registration Statement or the Prospectus or the effectiveness of the Registration
Statement, has been issued by the Commission, and no proceedings for such purpose have been instituted or, to the Company’s
knowledge, are contemplated or threatened by the Commission.
(iii) The
Company proposes to file with the Commission pursuant to Rule 424 under the Securities Act a final prospectus supplement relating
to the Securities to the form of prospectus included in the Registration Statement relating to the Securities in the form heretofore
delivered to the Placement Agent. Such prospectus included in the Registration Statement at the time it was declared
effective by the Commission or in the form in which it has been most recently filed with the Commission on or prior to the date
of this Agreement is hereinafter called the “Base Prospectus.” Such prospectus supplement, in the
form in which it shall be filed with the Commission pursuant to Rule 424(b) (including the Base Prospectus as so supplemented)
is hereinafter called the “Prospectus.” Any reference herein to the Base Prospectus or the
Prospectus or to any amendment or supplement to any of the foregoing shall be deemed to include any documents incorporated by reference
therein pursuant to Item 12 of Form S-1 under the Securities Act as of the date of such prospectus, and, in the case of any reference
herein to the Prospectus, also shall be deemed to include any documents incorporated by reference therein, and any supplements
or amendments thereto, filed with the Commission after the date of filing of the Prospectus under Rule 424(b) under the Securities
Act, and prior to the termination of the offering of the Securities by the Placement Agent.
(iv) For
purposes of this Agreement, all references to the Registration Statement, the Base Prospectus, the Prospectus or any amendment
or supplement to any of the foregoing shall be deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval System (“EDGAR”). All references in this Agreement to amendments
or supplements to the Registration Statement, the Base Prospectus or the Prospectus shall be deemed to mean and include the subsequent
filing of any document under the Securities Exchange Act of 1934, as amended (collectively with the rules and regulations promulgated
thereunder, the “Exchange Act”) and which is deemed to be incorporated therein by reference therein or otherwise
deemed to be a part thereof.
(b)
Compliance with Registration Requirements. At the time the Registration Statement or any post-effective amendment
thereto became effective (including each deemed effective date with respect to the Placement Agent pursuant to Rule 430B under
the Securities Act), the Registration Statement complied and will comply, in all material respects, with the requirements of the
Securities Act and did not and will not contain any untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading. The Prospectus, at the time of filing or the time
of first use and as of the Closing Date, 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 necessary in order
to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Disclosure
Package. As of the Time of Sale (as defined below) and as of the Closing Date, neither (A) the Base Prospectus and
the pricing information set forth on Exhibit B hereto, all considered together (collectively, the “Disclosure Package”),
nor (B) any Issuer Limited-Use Free Writing Prospectus (as defined below), when considered together with the Disclosure Package,
included or will include any untrue statement of a material fact or omitted or will omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made, not misleading. No
statement of material fact included in the Prospectus has been omitted from the Disclosure Package and no statement of material
fact included in the Disclosure Package that is required to be included in the Prospectus has been omitted therefrom. As
used in this paragraph and elsewhere in this Agreement:
(i) “Time
of Sale” with respect to any Investor, means 8 a.m., New York Time, on October 6, 2016.
(ii) “Issuer
Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 under the Securities
Act (“Rule 433”), relating to the Securities in the form filed or required to be filed with the Commission or,
if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g) under the Securities Act.
(iii) “Issuer
General Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general distribution to
prospective investors as identified on Schedule I hereto, and does not include a “bona fide electronic road show”
as defined in Rule 433.
(iv) “Issuer
Limited-Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not an Issuer General Free Writing
Prospectus as identified on Schedule I hereto, including any “bona fide electronic road show” as defined in
Rule 433, that is made available without restriction pursuant to Rule 433(d)(8)(ii), even though not required to be filed with
the Commission.
(d) Conflict
with Registration Statement. Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times
through the completion of the offering and sale of the Securities or until any earlier date that the Company notified or notifies
the Placement Agent, did not, does not and will not include any information that conflicted, conflicts or will conflict with the
information contained in the Registration Statement or the Prospectus including any document incorporated by reference therein
and any prospectus supplement deemed to be a part thereof that has not been superseded or modified.
(e) Distributed
Materials. The Company has not, directly or indirectly, distributed and will not distribute any prospectus or other
offering material in connection with the offering and sale of the Securities other than the Disclosure Package or the Prospectus,
and other materials, if any, permitted under the Securities Act to be distributed and consistent with Section 3(d) below. The Company
will file with the Commission all Issuer General Free Writing Prospectuses in the time required under Rule 433(d) under the Securities
Act. The Company has satisfied or will satisfy the conditions in Rule 433 under the Securities Act to avoid a requirement to file
with the Commission any electronic road show. The parties hereto agree and understand that the content of any and all “road
shows” related to the offering of the Securities contemplated hereby is solely the property of the Company.
(f) Not
an Ineligible Issuer. (1) At the time of filing the Registration Statement and (2) at the date hereof and at the
Closing Date, the Company was not, is not and will not be an “ineligible issuer,” as defined in Rule 405 under the
Securities Act, without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that
the Company be considered an ineligible issuer including, without limitation, for purposes of Rules 164 and 433 under the Securities
Act with respect to the offering of the Securities as contemplated by the Registration Statement.
(g) Incorporated
Documents. The documents incorporated by reference in the Disclosure Package and in the Prospectus, when they became
effective or were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and were filed on a timely basis with the Commission and none of such documents
contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading.
(h) Due
Incorporation. The Company has been duly incorporated and is validly existing as a corporation in good standing
under the laws of Delaware, with the corporate power and authority to own its properties and to conduct its business as currently
being carried on and as described in the Registration Statement, the Disclosure Package and the Prospectus. Each of
the subsidiaries of the Company (the “Subsidiaries”) has been duly organized and is validly existing as a corporation
in good standing under the laws of the jurisdiction of its incorporation, with corporate power and authority to own or lease its
properties and conduct its business as described in the Prospectus and the Disclosure Package. The Company and each
Subsidiary is duly qualified to transact business as a foreign corporation and is in good standing under the laws of each other
jurisdiction in which its ownership or leasing of property or the conduct of its business requires such qualification, except where
the failure to be so qualified and in good standing would not, individually or in the aggregate, result in any material adverse
effect upon, or material adverse change in, the general affairs, business, operations, properties, financial condition, or results
of operations of the Company and the Subsidiaries taken as a whole (a “Material Adverse Effect”).
(i) Capitalization. The
Company has duly and validly authorized capital stock as set forth in each of the Registration Statement, the Disclosure Package
and the Prospectus; all outstanding Common Stock of the Company conform, or when issued will conform, to the description thereof
in the Registration Statement, the Disclosure Package and the Prospectus and have been, or, when issued and paid for in the manner
described herein will be, duly authorized, validly issued, fully paid and non-assessable; and except as disclosed in the Registration
Statement, the Disclosure Package and the Prospectus, the issuance of the Securities, including, without limitation, issuance of
the Warrant Shares upon exercise, to be purchased from the Company hereunder is not subject to preemptive or other similar rights,
or any restriction upon the voting or transfer thereof pursuant to applicable law or the Company’s Certificate of Incorporation
or governing documents or any agreement to which the Company is a party or by which it may be bound.
(j) Authorization,
Issuance. All corporate action required to be taken by the Company for the authorization, issuance and sale of the
Securities has, or will have, been duly and validly taken prior to the Closing Date. The Shares and the Warrant Shares
have, or will have, been duly and validly authorized prior to the Closing Date. When the Shares and the Warrant Shares have been
issued and delivered against payment therefor as provided herein and in the Warrant, as the case may be, the Shares, when so issued
and sold, and the Warrant Shares, when issued upon exercise of the Warrants, will be duly and validly issued, fully paid and non-assessable
and the Investors or other persons in whose names Shares or Warrant Shares are registered will acquire good and valid title to
such Shares or Warrant Shares, in each case, free and clear of all liens, encumbrances, equities, preemptive rights and other claims.
The Shares and the Warrant Shares will conform in all material respects to the description thereof contained in the Registration
Statement, the Disclosure Package and the Prospectus. No further approval or authority of the stockholders or the Board
of Directors of the Company will be required for the issuance and sale of the Shares, the Warrants or the Warrant Shares as contemplated
herein and in the Securities Purchase Agreements. The Warrants conform, or when issued will conform, to the description
thereof contained in the Disclosure Package and the Prospectus and have been duly and validly authorized by the Company and upon
delivery to the Investors at the Closing Date will be valid and binding obligations of the Company, enforceable in accordance with
their terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights and remedies of creditors generally or subject to general principles of equity. Except as disclosed
in each of the Disclosure Package and Prospectus, or incorporated by reference therein, there are no outstanding subscriptions,
rights, warrants, options, calls, convertible securities, commitments of sale or rights related to or entitling any person to purchase
or otherwise to acquire any shares of, or any security convertible into or exchangeable or exercisable for, the capital stock of,
or other ownership interest in, the Company, except for such options or rights as may have been granted by the Company to employees,
directors or consultants pursuant to its stock option or stock purchase plans.
(k) No
Registration Rights. Neither the filing of the Registration Statement nor the offering or sale of the Securities
as contemplated by this Agreement gives rise to any rights, other than those which have been waived or satisfied, for or relating
to the registration of any Common Stock or other securities of the Company.
(l) Due
Authorization and Enforceability. This Agreement and each Securities Purchase Agreement has been, or will have been, duly authorized,
executed and delivered by the Company prior to the Closing Date, and will constitute a valid, legal and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except as rights to indemnity hereunder may be limited by
federal or state securities laws and except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization
or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(m) No
Violation. Neither the Company nor any of the Subsidiaries is in breach or violation of or in default (nor has any
event occurred which with notice, lapse of time or both would result in any breach or violation of, or constitute a default) (i)
under the provisions of its Certificate of Incorporation or governing documents or (ii) in the performance or observance of any
term, covenant, obligation, agreement or condition contained in any indenture, mortgage, deed of trust, bank loan or credit agreement
or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any
of the Subsidiaries is a party or by which any of them or any of their properties may be bound or affected, or (iii) in the performance
or observance of any statute, law, rule, regulation, ordinance, judgment, order or decree of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having jurisdiction over the Company, the Subsidiaries or any of their
respective properties (including, without limitation, those administered by the Environmental Protection Agency (the “EPA”)
or by any foreign, federal, state or local regulatory authority performing functions similar to those performed by the EPA), except,
with respect to clauses (ii) and (iii) above, to the extent any such contravention would not result in a Material Adverse Effect. Except
as set forth in the Registration Statement, the Disclosure Package and the Prospectus, the Company is not in violation of any of
the rules, regulations or requirements of the Nasdaq Capital Market (“Nasdaq”) and has no knowledge of any facts
or circumstances that would reasonably lead to delisting or suspension of the Common Stock by Nasdaq in the foreseeable future.
(n) No
Conflict. Except as set forth in the Registration Statement, the Disclosure Package and the Prospectus, the execution,
delivery and performance by the Company of this Agreement, each Securities Purchase Agreement and the consummation of the transactions
herein contemplated, including the issuance and sale by the Company of the Securities, will not conflict with or result in a breach
or violation of, or constitute a default under (nor constitute any event which with notice, lapse of time or both would result
in any breach or violation of or constitute a default under) (i) the provisions of the Certificate of Incorporation or governing
documents of the Company or any of the Subsidiaries, (ii) any material indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any material license, lease, contract (including, without limitation, any engagement
agreement or arrangement with any other broker-dealer) or other agreement or instrument to which the Company or any of the Subsidiaries
is a party or by which any of them or any of their respective properties may be bound or affected, or (iii) any federal, state,
local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company or any of the Subsidiaries,
except, with respect to clauses (ii) and (iii) above, to the extent any such contravention would not result in a Material Adverse
Effect.
(o) No
Consents Required. No approval, authorization, consent or order of or filing with any federal, state, local or foreign
governmental or regulatory commission, board, body, authority or agency, or with any self-regulatory organization or other non-governmental
regulatory authority (including, without limitation, Nasdaq or approval of the stockholders of the Company (including as may be
required pursuant to the rules and regulations of Nasdaq)), is required in connection with the issuance and sale of the Securities
or the consummation by the Company of the transactions contemplated hereby other than (i) as may be required under the Securities
Act, (ii) under the rules and regulations of the Financial Industry Regulatory Authority (“FINRA”) and (iii) as may
be required by Nasdaq. The Company has full power and authority to enter into this Agreement and each Securities Purchase
Agreement and to authorize, issue and sell the Securities as contemplated by this Agreement and each Securities Purchase Agreement.
(p) Absence
of Material Changes. Subsequent to the respective dates as of which information is given in the Disclosure Package, (a) neither
the Company nor any of its subsidiaries has incurred any material liability or obligation, direct or contingent, or entered into
any material transaction not in the ordinary course of business; (b) neither the Company nor any of its subsidiaries has purchased
any of the Company’s outstanding capital stock, or declared, paid or otherwise made any dividend or distribution of any kind
on the Company’s capital stock; (c) there has not been any change in the capital stock (other than a change in the number
of shares of outstanding Common Stock due to the issuance of such Common Stock upon the exercise of outstanding options or warrants
or pursuant to the terms of employment agreements outstanding prior to the date of the Disclosure Package), or material change
in the short−term debt or long−term debt of the Company and its Subsidiaries or any issue of options, warrants, convertible
securities or other rights to purchase the capital stock (other than grants of stock options under the Company’s stock option
plans existing on the date hereof) of the Company, or (d) there has not been any event that has resulted in a Material Adverse
Effect.
(q) Permits. The
Company and each of the Subsidiaries possess all necessary licenses, authorizations, consents and approvals and have made all necessary
filings required under any federal, state, local or foreign law, regulation or rule (including, without limitation, those from
the EPA and any other foreign, federal, state or local government or regulatory authorities performing functions similar to those
performed by the EPA) in order to conduct its business. Neither the Company nor any of the Subsidiaries is in violation
of, or in default under, or has received notice of any proceedings relating to revocation or modification of, any such license,
authorization, consent or approval. The Company and each of the Subsidiaries is in compliance in all material respects
with all applicable federal, state, local and foreign laws, regulations, orders or decrees.
(r) Legal
Proceedings. There are no legal or governmental proceedings pending or, to the Company’s knowledge, threatened or contemplated
to which the Company or any of the Subsidiaries is or would be a party or of which any of their respective properties is or would
be subject at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board,
body, authority or agency, or before or by any self-regulatory organization or other non-governmental regulatory authority (including,
without limitation, FINRA and Nasdaq), except (i) as described in the Registration Statement, the Disclosure Package and the Prospectus,
(ii) any such proceeding, which if resolved adversely to the Company or any Subsidiary, would not result in a judgment, decree
or order having, individually or in the aggregate, a Material Adverse Effect or (iii) any such proceeding that would not prevent
or materially and adversely affect the ability of the Company to consummate the transactions contemplated hereby.
(s) Statutes;
Contracts. There are no statutes or regulations applicable to the Company or contracts or other documents of the
Company which are required to be described in the Registration Statement, the Disclosure Package or the Prospectus or filed as
exhibits to the Registration Statement by the Securities Act which have not been so described or filed.
(t) Independent
Accountants. Marcum LLP, who has audited the financial statements of the Company and the Subsidiaries for certain
periods, is an independent registered public accounting firm (as defined in Section 2(a)(12) of the Sarbanes-Oxley Act of 2002
(the “Sarbanes-Oxley Act”)) with respect to the Company within the meaning of the Securities Act and the applicable
rules and regulations thereunder adopted by the Commission and the Public Company Accounting Oversight Board (United States).
(u) Financial
Statements. The financial statements of the Company, together with the related schedules and notes thereto, set
forth or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus comply in all material
respects with the applicable requirements of the Securities Act and the Exchange Act, as applicable, and present fairly in all
material respects (i) the financial condition of the Company and the Subsidiaries, taken as a whole, as of the dates indicated
and (ii) the consolidated results of operations, stockholders’ equity and changes in cash flows of the Company and the Subsidiaries,
taken as a whole, for the periods therein specified; and such financial statements and related schedules and notes thereto have
been prepared in conformity with generally accepted accounting principles as in effect in the United States, consistently applied
throughout the periods involved (except as otherwise stated therein and subject, in the case of unaudited financial statements,
to the absence of footnotes and normal year-end adjustments). There are no other financial statements (historical or
pro forma) that are required to be included in the Registration Statement, the Disclosure Package and the Prospectus; and the Company
and the Subsidiaries do not have any material liabilities or obligations, direct or contingent (including any off-balance sheet
obligations), not disclosed in the Registration Statement, the Disclosure Package and the Prospectus; and all disclosures contained
in the Registration Statement, the Disclosure Package and 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(e) of Regulation S-K of the Commission, to the extent applicable, and present fairly the information shown therein and
the Company’s basis for using such measures.
(v) Not
an Investment Company. Neither the Company nor any of the Subsidiaries is or, after giving effect to the offering
and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will be required to register
as an “investment company” as defined in the Investment Company Act of 1940, as amended.
(w) Good
Title to Property. The Company and each of the Subsidiaries has good and valid title to all property (whether real
or personal) described in the Registration Statement, the Disclosure Package and the Prospectus as being owned by each of them,
in each case free and clear of all liens, claims, security interests, other encumbrances or defects except such as are described
in the Registration Statement, the Disclosure Package and the Prospectus and those that would not, individually or in the aggregate
materially and adversely affect the value of such property and do not materially and adversely interfere with the use made and
proposed to be made of such property by the Company and the Subsidiaries. All of the property described in the Registration
Statement, the Disclosure Package and the Prospectus as being held under lease by the Company or a Subsidiary is held thereby under
valid, subsisting and enforceable leases, without any liens, restrictions, encumbrances or claims, except those that, individually
or in the aggregate, are not material and do not materially interfere with the use made and proposed to be made of such property
by the Company and the Subsidiaries.
(x) Intellectual
Property Rights. The Company and the Subsidiaries own, or have obtained valid and enforceable licenses for, or other
rights to use, the inventions, patent applications, patents, trademarks (both registered and unregistered), tradenames, copyrights,
trade secrets and other proprietary information described in the Registration Statement, the Disclosure Package and the Prospectus
as being owned or licensed by them or which are necessary for the conduct of their respective businesses (collectively, “Intellectual
Property”), except where the failure to own, license or have such rights would not, individually or in the aggregate,
result in a Material Adverse Effect. Except as described in the Registration Statement, the Disclosure Package and the
Prospectus (i) there are no third parties who have or, to the Company’s knowledge, will be able to establish rights to any
Intellectual Property, except for the ownership rights of the owners of the Intellectual Property which is licensed to the Company;
(ii) to the Company’s knowledge, there is no infringement by third parties of any Intellectual Property; (iii) there is no
pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others challenging the Company’s
rights in or to, or the validity, enforceability, or scope of, any Intellectual Property owned by or licensed to the Company, and
the Company is unaware of any facts which could form a reasonable basis for any such claim; (iv) there is no pending or, to the
Company’s knowledge, threatened action, suit, proceeding or claim by others that the Company or any of the Subsidiaries infringes
or otherwise violates any patent, trademark, copyright, trade secret or other proprietary rights of others, and the Company is
unaware of any facts which could form a reasonable basis for any such claim; (v) to the Company’s knowledge, there is no
patent or patent application that contains claims that interfere with the issued or pending claims of any of the Intellectual Property;
and (vi) to the Company’s knowledge, there is no prior art that may render any patent owned by the Company invalid, nor is
there any prior art known to the Company that may render any patent application owned by the Company unpatentable.
(y) Taxes. The
Company and each of the Subsidiaries has timely filed all material federal, state, local and foreign income and franchise tax returns
(or timely filed applicable extensions therefore) that have been required to be filed and are not in default in the payment of
any taxes which were payable pursuant to said returns or any assessments with respect thereto, other than any which the Company
or any of the Subsidiaries is contesting in good faith and for which adequate reserves have been provided and reflected in the
Company’s financial statements included in the Registration Statement, the Disclosure Package and the Prospectus. Neither
the Company nor any of its Subsidiaries has any tax deficiency that has been or, to the knowledge of the Company, might be asserted
or threatened against it that would result in a Material Adverse Effect.
(z) Insurance. The
Company and each of the Subsidiaries maintains insurance in such amounts and covering such risks as is adequate for the conduct
of its business and the value of its properties and as is customary for companies engaged in similar businesses in similar industries. All
such insurance is fully in force on the date hereof and will be fully in force as of the Closing Date. Neither the Company
nor any of the Subsidiaries has any reason to believe that it will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at
a cost that would not have a Material Adverse Effect.
(aa) Accounting
Controls. The Company and each of the Subsidiaries maintains 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 to permit preparation of financial statements in conformity with generally accepted
accounting principles as in effect in the United States 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.
(bb) Disclosure
Controls. The Company has established, maintains and evaluates “disclosure controls and procedures”
(as such term is defined in Rule 13a-15(e) and 15d-15(e) under the Exchange Act), which (i) are designed to ensure that material
information relating to the Company is made known to the Company’s principal executive officer and its principal financial
officer by others within those entities, particularly during the periods in which the periodic reports required under the Exchange
Act are being prepared, (ii) have been evaluated for effectiveness as of the end of the last fiscal period covered by the Registration
Statement; and (iii) such disclosure controls and procedures are effective to perform the functions for which they were established.
There are no significant deficiencies and material weaknesses in the design or operation of internal controls which could adversely
affect the Company’s ability to record, process, summarize, and report financial data to management and the Board of Directors.
The Company is not aware of any fraud, whether or not material, that involves management or other employees who have a role in
the Company’s internal controls; and since the date of the most recent evaluation of such disclosure controls and procedures,
there have been no significant changes in internal controls or in other factors that could significantly affect internal controls,
including any corrective actions with regard to significant deficiencies and material weaknesses.
(cc) Corrupt
Practices. Neither the Company nor, to the Company’s knowledge, any other person associated with or acting
on behalf of the Company, including without limitation any director, officer, agent or employee of the Company or its Subsidiaries
has, directly or indirectly, while acting on behalf of the Company or its Subsidiaries (i) used any corporate funds for unlawful
contributions, gifts, entertainment or other unlawful expenses relating to political activity, (ii) made any unlawful payment to
foreign or domestic government officials or employees or to foreign or domestic political parties or campaigns from corporate funds,
(iii) violated any provision of the Foreign Corrupt Practices Act of 1977, as amended or (iv) made any other unlawful payment.
(dd) No
Price Stabilization. Neither the Company nor any of the Subsidiaries nor, to the Company’s knowledge, any
of their respective officers, directors, affiliates or controlling persons has taken or will take, directly or indirectly, any
action designed to cause or result in, or which has constituted or which might reasonably be expected to constitute the stabilization
or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(ee) No
Undisclosed Relationships. No relationship, direct or indirect, exists between or among the Company on the one hand
and the directors, officers, stockholders, customers or suppliers of the Company on the other hand which is required to be described
in the Registration Statement, the Disclosure Package and the Prospectus which has not been so described. There are no outstanding
loans, advances (except normal advances for business expenses in the ordinary course of business) or guarantees of indebtedness
by the Company to or for the benefit of any of the officers or directors of the Company or any member of their respective immediate
families. The Company has not, in violation of the Sarbanes-Oxley Act, directly or indirectly, extended or maintained credit, arranged
for the extension of credit, or renewed an extension of credit, in the form of a personal loan to or for any director or executive
officer of the Company.
(ff) Sarbanes-Oxley
Act. The Company, and to its knowledge after due inquiry, all of the Company’s directors or officers, in their
capacities as such, are in compliance in all material respects with all applicable effective provisions of the Sarbanes-Oxley Act
and any related rules and regulations promulgated by the Commission.
(gg) Brokers
Fees. Neither the Company nor any of the Subsidiaries is a party to any contract, agreement or understanding with
any person (other than this Agreement or any other agreement with Chardan) that would give rise to a valid claim against the Company
or the Subsidiaries or the Placement Agent for a brokerage commission, finder’s fee or other like payment in connection with
the offering and sale of the Securities.
(hh) Exchange
Act Requirements. The Company has filed in a timely manner all reports required to be filed pursuant to Sections 13, 14 and
15(d) of the Exchange Act during the preceding 12 months. Except as set forth in the Registration Statement, the Disclosure
Package and the Prospectus, the Company’s Common Stock is listed and trades on the Nasdaq and no stop order or notice of
suspension of trading of its Common Stock on the Nasdaq Capital Market has been received from or, to the Company’s knowledge,
threatened by any person.
(ii)
FINRA Affiliations. To the Company’s knowledge, there are no affiliations or associations between (i) any
member of FINRA and (ii) the Company or any of the Company’s officers, directors or 5% or greater securityholders or any
beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the one hundred
eightieth (180th) day immediately preceding the date the Registration Statement was initially filed with the Commission.
(jj) Compliance
with Environmental Laws. The Company and the Subsidiaries (a) are in compliance with any and all applicable foreign,
federal, state and local laws, orders, rules, regulations, directives, decrees and judgments relating to the protection of human
health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental
Laws”), (b) have received all permits, licenses or other approvals required of them under applicable Environmental Laws
to conduct their respective businesses and (c) are in compliance with all terms and conditions of any such permit, license or approval,
except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure
to comply with the terms and conditions of such permits, licenses or approvals would not, individually or in the aggregate, result
in a Material Adverse Effect. There are no costs or liabilities associated with Environmental Laws (including, without
limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental
Laws or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third
parties) which would, individually or in the aggregate, result in a Material Adverse Effect.
(kk) No
Labor Disputes. Neither the Company nor any Subsidiary is engaged in any unfair labor practice; except for matters
that would not, individually or in the aggregate, result in a Material Adverse Effect. There is (A) no unfair labor
practice complaint pending or, to the Company’s knowledge after due inquiry, threatened against the Company or any Subsidiary
before the National Labor Relations Board, and no grievance or arbitration proceeding arising out of or under collective bargaining
agreements is pending or, to the Company’s knowledge, threatened, (B) no strike, labor dispute, slowdown or stoppage pending
or, to the Company’s knowledge after due inquiry, threatened against the Company or any Subsidiary and (C) no union representation
dispute currently existing concerning the employees of the Company or any Subsidiary, and (ii) to the Company’s knowledge
(A) no union organizing activities are currently taking place concerning the employees of the Company or any Subsidiary and (B)
there has been no violation of any federal, state, local or foreign law relating to discrimination in the hiring, promotion or
pay of employees or any applicable wage or hour laws concerning the employees of the Company or any Subsidiary.
(ll) ERISA. The
Company is in compliance in all material respects with all presently applicable provisions of the Employee Retirement Income Security
Act of 1974, as amended, including the regulations and published interpretations thereunder (“ERISA”); no “reportable
event” (as defined in ERISA) has occurred with respect to any “pension plan” (as defined in ERISA) for which
the Company would have any liability; the Company has not incurred and does not expect to incur liability under (i) Title IV of
ERISA with respect to termination of, or withdrawal from, any “pension plan” or (ii) Sections 412 or 4971 of the Internal
Revenue Code of 1986, as amended, including the regulations and published interpretations thereunder (the “Code”);
and each “pension plan” for which the Company would have any liability that is intended to be qualified under Section
401(a) of the Code is so qualified in all material respects and nothing has occurred, whether by action or by failure to act, which
would cause the loss of such qualification.
(mm) Exchange
Act Registration. Except as set forth in the Registration Statement, the Disclosure Package and the Prospectus,
the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock
under the Exchange Act or delisting the Common Stock from Nasdaq, nor has the Company received any notification that the Commission
or Nasdaq is contemplating terminating such registration or listing. Except as set forth in the Registration Statement, the Disclosure
Package and the Prospectus, the Company has complied in all material respects with the applicable requirements of Nasdaq for maintenance
of listing of the Common Stock thereon.
(nn) PFIC
Status. The Company is not, for the taxable year ended December 31, 2015, and upon consummation of the transactions
described hereby and the application of the proceeds as described in the Registration Statement, the Disclosure Package and the
Prospectus is not expected to become, a Passive Foreign Investment Company within the meaning of Section 1297 of the Internal Revenue
Code, as amended.
(oo) Statistical
or Market-Related Data. Any statistical, industry-related and market-related data included or incorporated by reference
in the Registration Statement, the Disclosure Package and the Prospectus, are based on or derived from sources that the Company
reasonably and in good faith believes to be reliable and accurate, and such data agrees with the sources from which they are derived.
(pp) Descriptions
of Documents. The statements set forth in each of the Registration Statement, the Disclosure Package and the Prospectus
describing the Securities and this Agreement, insofar as they purport to describe the provisions of the laws and documents referred
to therein, are accurate, complete and fair in all material respects.
(qq) Money
Laundering Laws. The operations of the Company 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 agency (collectively, the “Money
Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body
or any arbitrator involving the Company with respect to the Money Laundering Laws is pending, or to the knowledge of the Company,
threatened.
(rr) OFAC. Neither
the Company nor any of its Subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee or affiliate
of the Company or any of its Subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets
Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly or indirectly use the proceeds
of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other
person or entity that, to the Company’s knowledge, will use such proceeds, for the purpose of financing the activities of
any person currently subject to any U.S. sanctions administered by OFAC.
3. Covenants.
The Company covenants and agrees with the Placement Agent as follows:
(a) Reporting
Obligations; Exchange Act Compliance. The Company will (i) file the Prospectus with the Commission within the time
periods specified by Rule 424(b) and Rules 430A, 430B and 430C, as applicable under the Securities Act, (ii) file any Issuer Free
Writing Prospectus to the extent required by Rule 433 under the Securities Act, if applicable, (iii) file timely all reports required
to be filed by the Company with the Commission pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act subsequent to the
date of the Prospectus and during such period as the Prospectus would be required by law to be delivered (whether physically
or through compliance with Rule 172 under the Securities Act or any similar rule) (the “Prospectus Delivery Period”),
and (iv) furnish copies of each Issuer Free Writing Prospectus, if any, (to the extent not previously delivered) to the Placement
Agent prior to 11:00 a.m. Eastern time, on the second business day next succeeding the date of this Agreement in such quantities
as the Placement Agent shall reasonably request.
(b) Abbreviated
Registration Statement. If the Company elects to rely upon Rule 462(b) under the Securities Act, the Company shall
file a registration statement under Rule 462(b) with the Commission in compliance with Rule 462(b) by 8:00 a.m., Eastern time,
on the business day next succeeding the date of this Agreement, and the Company shall at the time of filing either pay to the Commission
the filing fee for such Rule 462(b) registration statement or give irrevocable instructions for the payment of such fee pursuant
to the Rules and Regulations.
(c) Amendments
or Supplements. The Company will not, during the Prospectus Delivery Period in connection with the Offering
contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy
thereof shall first have been submitted to the Placement Agent within a reasonable period of time prior to the filing thereof and
the Placement Agent shall not have reasonably objected thereto in good faith.
(d) Free
Writing Prospectuses. The Company will (i) not make any offer relating to the Securities that would constitute an
“issuer free writing prospectus” (as defined in Rule 433) or that would otherwise constitute a “free writing
prospectus” (as defined in Rule 405 under the Securities Act) required to be filed by the Company with the Commission under
Rule 433 under the Securities Act unless the Placement Agent approves its use in writing prior to first use (each, a “Permitted
Free Writing Prospectus”); provided, that the prior written consent of the Placement Agent hereto shall
be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule I hereto, (ii) treat each
Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433
under the Securities Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing
with the Commission, legending and record keeping and (iv) subject to Section 4(b) herein, not take any action that would result
in the Placement Agent or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act
a free writing prospectus prepared by or on behalf of such Placement Agent that such Placement Agent otherwise would not have been
required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Securities Act to avoid a requirement
to file with the Commission any electronic road show.
(e) Notice
to Placement Agent. During the Prospectus Delivery Period, the Company will notify the Placement Agent promptly,
and will, if requested, confirm such notification in writing: (i) the receipt of any comments of, or requests for additional information
from, the Commission; (ii) the time and date of any filing of any post-effective amendment to the Registration Statement or any
amendment or supplement to the Disclosure Package or the Prospectus, (iii) the time and date when any post-effective amendment
to the Registration Statement becomes effective; (iv) of the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement, or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary
Prospectus, the Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus, or the initiation of any proceedings
for that purpose or the threat thereof; (v) of receipt by the Company of any notification with respect to any suspension or the
approval of the Shares and Warrant Shares from any securities exchange upon which it is listed for trading or included or designated
for quotation, or the initiation or threatening of any proceeding for such purpose. The Company will use its reasonable
best efforts to prevent the issuance or invocation of any such stop order or suspension by the Commission and, if any such stop
order or suspension is so issued or invoked, to obtain as soon as possible the withdrawal or removal thereof.
(f) Filing
of Amendments or Supplements. If, during the Prospectus Delivery Period, any event shall occur or condition exist as a result
of which it is necessary to amend or supplement the Prospectus (or, if the Prospectus is not yet available to prospective purchasers,
the Disclosure Package) in order to make the statements therein, in the light of the circumstances when the Prospectus (or, if
the Prospectus is not yet available to prospective purchasers, the Disclosure Package) is delivered to an Investor, not misleading,
or if, in the opinion of counsel for the Placement Agent, it is necessary to amend or supplement the Prospectus (or, if the Prospectus
is not yet available to prospective purchasers, the Disclosure Package) to comply with applicable law, the Company shall prepare
and file with the Commission and furnish, at its own expense, to the Placement Agent, either amendments or supplements to the Prospectus
(or, if the Prospectus is not yet available to prospective purchasers, the Disclosure Package) so that the statements in the Prospectus
(or, if the Prospectus is not yet available to prospective purchasers, the Disclosure Package) as so amended or supplemented will
not, in the light of the circumstances when the Prospectus (or, if the Prospectus is not yet available to prospective purchasers,
the Disclosure Package) is delivered to an Investor, be misleading or so that the Prospectus (or, if the Prospectus is not yet
available to prospective purchasers, the Disclosure Package), as amended or supplemented, will comply with law. If at any time
following the issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which
such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement relating
to the Securities or included or would include an untrue statement of a material fact or omitted or would omit to state a material
fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not
misleading, the Company promptly will notify the Placement Agent and will promptly amend or supplement, at its own expense, such
Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(g) Delivery
of Copies. The Company will deliver promptly to the Placement Agent and its counsel such number of the following
documents as the Placement Agent shall reasonably request (other than any such document that is filed with the Commission electronically
via EDGAR or any successor system): (i) conformed copies of the Registration Statement as originally filed with the
Commission and each amendment thereto (in each case excluding exhibits), (ii) copies of any Preliminary Prospectus or Issuer Free
Writing Prospectus, (iii) during the Prospectus Delivery Period, copies of the Prospectus (or any amendments or supplements thereto);
(iii) any document incorporated by reference in the Prospectus and (iv) all correspondence to and from, and all documents issued
to and by, the Commission in connection with the registration of the Securities under the Securities Act.
(h) Lock-Up
Period. The Company hereby agrees that, without the prior written consent of Chardan, it will not, during the period ending
on and including the 90th day after the date of the Prospectus Supplement (as the same may be extended as described below, the
“Lock-Up Period”), (i) offer, pledge, issue, sell, contract to sell, lend, or otherwise transfer or dispose
of, directly or indirectly, any Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock;
or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences
of ownership of the Common Stock, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Stock or such other securities, in cash or otherwise; or (iii) file any registration statement with the Commission relating
to the offering of any Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock. The restrictions
contained in the preceding sentence shall not apply to (1) the Shares to be sold hereunder, (2) the issuance of Common Stock upon
the exercise of options or warrants disclosed as outstanding in the Registration Statement (excluding exhibits thereto) or the
Prospectus, and (3) the issuance of employee stock options not exercisable during the Lock-Up Period and the grant of restricted
stock awards or restricted stock Securities pursuant to equity incentive plans described in the Registration Statement (excluding
exhibits thereto) and the Prospectus. Notwithstanding the foregoing, if (x) the Company issues an earnings release or material
news, or a material event relating to the Company occurs, during the last 17 days of the Lock-Up Period, or (y) prior to the expiration
of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last
day of the Lock-Up Period, the restrictions imposed by this clause shall continue to apply until the expiration of the 18-day period
beginning on the issuance of the earnings release or the occurrence of the material news or material event, unless Chardan waives
such extension in writing; provided, however, that this sentence shall not apply if (A) the Company meets the applicable requirements
of Rule 139(a)(1) under the Securities Act in the manner contemplated by NASD Conduct Rule 2711(f)(4) (B) the Company’s securities
are “actively traded” as defined in Rule 101(c)(1) of Regulation M of the Exchange Act and (C) the provisions of NASD
Conduct Rule 2711(f)(4) do not restrict the publication or distribution, by the Placement Agent, of any research reports relating
to the Company during the 15 days before or after the last day of the Lock-up Period (before giving effect to such extension).
(i) Earnings
Statement. As soon as practicable, but in any event not later than 15 months after the end of the Company’s current
fiscal quarter, the Company will make generally available to holders of its securities and deliver to the Placement Agent, an earnings
statement of the Company (which need not be audited) that will satisfy the provisions of Section 11(a) and Rule 158 of the Securities
Act.
(j) Public
Communications. Prior to the Closing Date, the Company will not issue any press release or other communication directly
or indirectly or hold any press conference with respect to the Company, its condition, financial or otherwise, or the earnings,
business, operations or prospects of any of them, or the offering of the Securities, without the prior written consent of the Placement
Agent, unless in the reasonable judgment of the Company and its counsel, and after notification to the Placement Agent, such press
release or communication is required by law, in which case the Company shall use its reasonable best efforts to allow the Placement
Agent reasonable time to comment on such release or other communication in advance of such issuance.
(k) Stabilization. The
Company will not take directly or indirectly any action designed, or that might reasonably be expected to cause or result in, or
that will constitute, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale
of any of the Securities.
(l) Transfer
Agent. The Company shall engage and maintain, at its expense, a transfer agent and, if necessary under the jurisdiction
of incorporation of the Company, a registrar for the Shares and Warrant Shares.
(m) Investment
Company Act. The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of
the Securities in such a manner as would require the Company to register as an investment company under the Investment Company
Act.
(n) Sarbanes-Oxley
Act. The Company will comply with all effective applicable provisions of the Sarbanes Oxley Act.
(o) Exchange
Act Reports. During the Prospectus Delivery Period, the Company will file with the Commission such periodic and
current reports as required by the Exchange Act.
4. Representations,
Warranties and Agreements of Placement Agent. The Placement Agent represents and agrees that,
without the prior consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute
a free writing prospectus; any such free writing prospectus the use of which has been consented to by the Company and the Placement
Agent is listed on Schedule I hereto.
5. Costs
and Expenses. The Company and the Placement Agent agree that except as provided in Section
7, the Company shall pay all of its own costs and expenses, including, without limitation, all costs and expenses of its own
counsel, incident to the performance of each of its obligations under this Agreement and in connection with the transactions contemplated
hereby. The Company shall reimburse the Placement Agent for its out-of-pocket expenses incurred in connection with the Offering,
including, but not limited to, fees of its legal counsel and travel and road show expenses, up to a maximum of $90,000.
6. Conditions
of Placement Agent’s Obligations. The obligations of the Placement Agent hereunder are
subject to the following conditions:
(a) Filings
with the Commission. The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the
Securities Act at or before 5:30 p.m., Eastern time, within two full business days of the date of this Agreement (or such earlier
time as may be required under the Securities Act).
(b) Abbreviated
Registration Statement. If the Company has elected to rely upon Rule 462(b), the registration statement filed under
Rule 462(b) shall have become effective under the Securities Act by 8:00 a.m., Eastern time, on the business day next succeeding
the date of this Agreement.
(c) No
Stop Orders. Prior to the Closing: (i) no stop order suspending the effectiveness of the Registration Statement
shall have been issued under the Securities Act and no proceedings initiated under Section 8(d) or 8(e) of the Securities Act for
that purpose shall be pending or, to the Company’s knowledge, threatened by the Commission, and (ii) any request for additional
information on the part of the Commission (to be included in the Registration Statement, the Disclosure Package, the Prospectus
or any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Placement
Agent.
(d) Action
Preventing Issuance. No action shall have been taken and no statute, rule, regulation or order shall have been enacted,
adopted or issued by any governmental agency or body which would, as of the Closing Date, prevent the issuance or sale of the Securities;
and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall
have been issued as of the Closing Date which would prevent the issuance or sale of the Securities.
(e) Objection
of Placement Agent. No Prospectus or amendment or supplement to the Registration Statement shall have been filed
to which the Placement Agent shall have objected in writing, which objection shall not be unreasonable. The Placement
Agent shall not have advised the Company that the Registration Statement, the Disclosure Package or the Prospectus, or any amendment
thereof or supplement thereto, or any Issuer Free Writing Prospectus contains an untrue statement of fact which, in its opinion,
is material, or omits to state a fact which, in its opinion, is material and is required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were made, not misleading.
(f) No
Material Adverse Effect. Prior to the Closing, there shall not have occurred any event that has resulted
in a Material Adverse Effect that makes it, in the Placement Agent’s reasonable judgment, impracticable to market the Securities
on the terms and in the manner contemplated in the Disclosure Package, including, without limitation, any of the following events:
(i) a
suspension or material limitation in trading in securities generally on the New York Stock Exchange, the NYSE MKT, the NASDAQ Stock
Market, the NASDAQ Global Select Market, the NASDAQ Global Market, the NASDAQ Capital Market, or the over the counter market or
the establishing on such exchanges or markets by the SEC or by such exchanges or markets of minimum or maximum prices that are
not in force and effect on the date hereof;
(ii) a
suspension or material limitation in trading in the Company’s securities on any other exchange or market or the establishing
on any such market or exchange by the SEC or by such market of minimum or maximum prices that are not in force and effect on the
date hereof;
(iii) a
general moratorium on commercial banking activities declared by either federal or any state authorities;
(iv) the
outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency
or war, which in the Placement Agent’s sole judgment makes it impracticable or inadvisable to proceed with the public offering
or the delivery of the Securities in the manner contemplated in the Prospectus; or
(v) any
calamity or crisis, change in national, international or world affairs, act of God, change in the international or domestic markets,
or change in the existing financial, political or economic conditions in the United States or elsewhere, that in the Placement
Agent’s judgment makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities
in the manner contemplated in each of the Disclosure Package and the Prospectus.
(g) On
or before the date hereof, the Placement Agent shall have received duly executed “lock-up” agreements, in a form attached
as Exhibit D hereto, between the Placement Agent and the individuals listed on Schedule II.
(h) Representations
and Warranties. Each of the representations and warranties of the Company contained herein shall be true and correct,
in all material respects (other than those representations, warranties and agreements that are qualified as to materiality, which
shall be true and correct in all respects), as of the date hereof and the Closing Date, and all covenants and agreements herein
contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the
Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with.
(i) On
the Closing Date, there shall have been furnished to the Placement Agent the opinion and negative assurance letter of Ellenoff
Grossman & Schole LLP, counsel for the Company, dated the Closing Date and addressed to the Placement Agent, in form and substance
reasonably satisfactory to the Placement Agent.
(j) Officer’s
Certificate. The Placement Agent shall have received on the Closing Date a certificate, addressed to the Placement
Agent and dated the Closing Date, of the chief executive officer and the chief financial officer of the Company to the effect that:
(i) each
of the representations, warranties and agreements of the Company in this Agreement are true and correct, in all material respects
(other than those representations, warranties and agreements that are qualified as to materiality, which are true and correct in
all respects), as of the Time of Sale and the Closing Date; and the Company has complied with all agreements and satisfied all
the conditions on its part required under this Agreement to be performed or satisfied at or prior to the Closing Date;
(ii) subsequent
to the respective dates as of which information is given in the Disclosure Package, there has not been any event that has resulted
in a Material Adverse Effect;
(iii) no
stop order suspending the effectiveness of the Registration Statement or any part thereof or any amendment thereof or the qualification
of the Securities for offering or sale, nor suspending or preventing the use of the Disclosure Package, the Prospectus or any Issuer
Free Writing Prospectus shall have been issued, and no proceedings for that purpose shall be pending or to their knowledge, threatened
by the Commission or any state or regulatory body; and
(iv) the
signers of said certificate have reviewed the Registration Statement, the Disclosure Package and the Prospectus, and any amendments
thereof or supplements thereto (and any documents filed under the Exchange Act and deemed to be incorporated by reference into
the Disclosure Package and the Prospectus), and (A) (i) the Registration Statement and any amendment thereof did not contain when
the Registration Statement (or such amendment) became effective, any untrue statement of a material fact or omit to state when
the Registration Statement (or such amendment) became effective, any material fact required to be stated therein or necessary to
make the statements therein not misleading and (ii) as of the Time of Sale, neither the Disclosure Package nor any individual Issuer
Limited Use Free Writing Prospectus, when considered together with the Disclosure Package, contained any untrue statement of material
fact or omitted to state any material fact necessary to make the statements therein, in light of the circumstances under which
they were made, not misleading and (iii) the Prospectus, as amended or supplemented, does not and did not contain, as of the time
of filing and as of the Closing Date, any untrue statement of material fact or omit to state and did not omit to state as of such
date, a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading,
and (B) since the Time of Sale, there has occurred no event required to be set forth in an amendment or supplement to the Registration
Statement, the Disclosure Package or the Prospectus which has not been so set forth and there has been no document required to
be filed under the Exchange Act that upon such filing would be deemed to be incorporated by reference in to the Disclosure Package
and into the Prospectus that has not been so filed.
(k) Secretary’s
Certificate. On the Closing Date, the Company shall have furnished to the Placement Agent a Secretary’s Certificate
of the Company.
(l) Other
Filings with the Commission. No later than the business day immediately following the Closing Date, the Company
shall have prepared and filed with the Commission a Current Report on Form 8-K with respect to the transactions contemplated hereby,
including as an exhibit thereto this Agreement and any other documents relating thereto.
(m) Additional
Documents. Prior to the Closing Date, the Company shall have furnished to the Placement Agent such further information,
certificates or documents as the Placement Agent shall have reasonably requested for the purpose of enabling them to pass upon
the issuance and sale of the Securities as contemplated herein, or in order to evidence the accuracy of any of the representations
and warranties, or the satisfaction of any of the conditions or agreements, herein contained.
All opinions, letters, evidence and certificates
mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are
in form and substance reasonably satisfactory to counsel for the Placement Agent.
If any condition specified in this Section
6 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Placement Agent by notice
to the Company at any time prior to the Closing Date, which termination shall be without liability on the part of any party to
any other party, except that Section 5, Section 7 and Section 9 shall at all times be effective and shall
survive such termination.
7. Indemnification
and Contribution.
(a) Indemnification
of the Placement Agent. The Company agrees to indemnify, defend and hold harmless each of the Placement Agent, its
respective directors and officers, and each person, if any, who controls such Placement Agent within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act, and the successors and assigns of all of the foregoing persons, from
and against any loss, damage, claim or liability, which, jointly or severally, such Placement Agent or any such person may become
subject under the Securities Act, the Exchange Act, or other federal or state statutory law or regulation, the common law or otherwise,
(including in settlement of any litigation, if such settlement is effected with the written consent of the Company), insofar as
such loss, damage, claim or liability (or actions in respect thereof as contemplated below) arises out of or is based upon: (i)
any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereto
or the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements
therein not misleading; (ii) any untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus,
any Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to make the statements made therein, in light of the
circumstances under which they were made, not misleading; and, in the case of (i) and (ii) above, to reimburse such Placement Agent
and each such controlling person for any and all reasonable expenses (including reasonable fees and disbursements of counsel) as
such expenses are incurred by such Placement Agent or such controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing
indemnity shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, it arises out
of or is based upon any untrue statement or alleged untrue statement of a material fact contained in or omitted from, and in conformity
with information concerning such Placement Agent furnished in writing by or on behalf of such Placement Agent to the Company expressly
for use therein, or (iii) any untrue statement or alleged untrue statement of any material fact contained in any audio or visual
materials provided to Investors by or with the approval of the Company including, without limitation, slides, videos, films or
tape recordings used in any road show or investor presentations made to investors by the Company (whether in person or electronically)
or in connection with the marketing of the Securities.
(b) Indemnification
of the Company. The Placement Agent will indemnify, defend and hold harmless the Company, its directors and officers,
and any person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act, and the successors and assigns of all of the foregoing persons, from and against any loss, claim, damage, liability
or expense, as incurred to which, jointly or severally, the Company or any such person may become subject under the Securities
Act, the Exchange Act, or other federal or state statutory law or regulation, the common law or otherwise (including in settlement
of any litigation, if such settlement is effected with the written consent of such Placement Agent), insofar as such loss, claim,
damage, liability or expense (or actions in respect thereof as contemplated below) arises out of or is based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereto, or
the omission or alleged omission therefrom to state a material fact required to be stated therein or necessary to make the statements
therein not misleading; (ii) any untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus,
any Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to make the statements made therein, in light of the
circumstances under which they were made, not misleading, in the case of each of (i) and (ii) above, to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration
Statement, any Preliminary Prospectus, Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto)
in reliance upon and in conformity with information concerning such Placement Agent furnished in writing by or on behalf of such
Placement Agent to the Company expressly for use therein and to reimburse the Company, or any such director, officer or controlling
person for any legal and other expense reasonably incurred by the Company, or any such director, officer or controlling person
in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense
or action.
(c) Notice
and Procedures. If any action, suit or proceeding (each, a “Proceeding”) is brought against a
person (an “indemnified party”) in respect of which indemnity may be sought against the Company or the Placement
Agent (as applicable, the “indemnifying party”) pursuant to subsection (a) or (b), respectively, of this Section
7, such indemnified party shall promptly notify such indemnifying party in writing of the institution of such Proceeding and
such indemnifying party shall assume the defense of such Proceeding, including the employment of counsel reasonably satisfactory
to such indemnified party and payment of all fees and expenses; provided, however, that the omission to so notify such indemnifying
party shall not relieve such indemnifying party from any liability which such indemnifying party may have to any indemnified party
or otherwise, except to the extent such failure results in the forfeiture by the indemnifying party of substantial rights or defenses.
The indemnified party or parties 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 indemnified party or parties unless (i) the employment of such counsel shall have
been authorized in writing by the indemnifying party in connection with the defense of such Proceeding, (ii) the indemnifying party
shall not have, within a reasonable period of time in light of the circumstances, employed counsel to defend such Proceeding 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, additional to or in conflict with those available to such indemnifying party, in any of which events such reasonable
fees and expenses shall be borne by such indemnifying party and paid as incurred (it being understood, however, that such indemnifying
party shall not be liable for the expenses of more than one separate counsel (in addition to any local counsel) in any one Proceeding
or series of related Proceedings in the same jurisdiction representing the indemnified parties who are parties to such Proceeding).
An indemnifying party shall not be liable for any settlement of any Proceeding (including by consent to the entry of any judgment)
effected without its written consent but, if settled with its written consent or if there be a final judgment for the plaintiff,
such indemnifying party agrees to indemnify and hold harmless the indemnified party or parties from and against any loss or liability
by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel (which fees and expenses shall
be reasonably documented) as contemplated by the second sentence of this Section 7(c), then the indemnifying party agrees
that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered
into more than 90 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall not
have fully reimbursed the indemnified party in accordance with such request prior to the date of such settlement and (iii) such
indemnified party shall have given the indemnifying party at least 30 days’ prior notice of its intention to settle. No indemnifying
party shall, without the prior written consent of the indemnified party, effect any settlement, compromise or consent to the entry
of judgment in any pending or threatened Proceeding in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release
of such indemnified party from all liability on claims that are the subject matter of such Proceeding and does not include an admission
of fault or culpability or a failure to act by or on behalf of such indemnified party.
(d) Contribution. If
the indemnification provided for in this Section 7 is unavailable to an indemnified party under subsections (a) or (b) of
this Section 7 or insufficient to hold an indemnified party harmless in respect of any losses, claims, damages, liabilities
or expenses referred to therein, then each applicable indemnifying party shall, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages, liabilities
or expenses referred to in subsection (a) or (b) above, (i) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Placement Agent on the other from the offering of the Securities 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 Placement
Agent on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages, liabilities
or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company on
the one hand and the Placement Agent on the other hand shall be deemed to be in the same respective proportions as the total net
proceeds from the offering of the Securities (before deducting expenses) received by the Company and the Placement Fee received
by the Placement Agent, in each case as set forth on the cover of the Prospectus, bear to the aggregate public offering price of
the Securities. The relative fault of the Company on the one hand and the Placement Agent on the other hand shall be
determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information supplied by the Company, on the one hand, or by the Placement
Agent, on the other hand, and the parties’ relevant intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company and the Placement Agent agree that it would not be just and equitable
if contribution pursuant to this subsection (d) were to be determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to in the first sentence of this Section 7(d). The
amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities referred to in the first
sentence of this Section 7(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending against any action or claim which is the subject of this Section 7(d). Notwithstanding
the provisions of this Section 7(d), the Placement Agent shall not be required to contribute any amount in excess of the
Placement Fee. 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.
(e) Representations
and Agreements to Survive Delivery. The obligations of the Company under this Section 7 shall be in addition
to any liability which the Company may otherwise have. The indemnity and contribution agreements of the parties contained
in this Section 7 and the covenants, warranties and representations of the Company contained in this Agreement shall remain
operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on
behalf of the Placement Agent, any person who controls the Placement Agent within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act or any affiliate of the Placement Agent, or by or on behalf of the Company, its directors
or officers or any person who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20
of the Exchange Act, and (iii) the issuance and delivery of the Securities. The Company and the Placement Agent agree promptly
to notify each other of the commencement of any Proceeding against it and, in the case of the Company, against any of the Company’s
officers or directors in connection with the issuance and sale of the Securities, or in connection with the Registration Statement,
the Disclosure Package or the Prospectus.
8. [Reserved]
9. Termination.
(a) The
Placement Agent shall have the right to terminate this Agreement by giving notice as hereinafter specified at any time at or prior
to the Closing Date, without liability on the part of the Placement Agent to the Company, if (i) prior to delivery and payment
for the Securities (A) trading in securities generally shall have been suspended or materially limited on or by the New York Stock
Exchange, the NASDAQ Stock Market, the NASDAQ Global Select Market, the NASDAQ Global Market, the NASDAQ Capital Market, or the
NYSE MKT (each, a “Trading Market”), (B) trading in the Common Stock of the Company shall have been suspended
or materially limited on any exchange or in the over-the-counter market, (C) a general moratorium on commercial banking activities
shall have been declared by federal or New York state authorities, (D) there shall have occurred any outbreak or material escalation
of hostilities or acts of terrorism involving the United States or there shall have been a declaration by the United States of
a national emergency or war, (E) there shall have occurred any other calamity or crisis or any material change in general economic,
political or financial conditions in the United States or elsewhere, if the effect of any such event specified in clause (D) or
(E), in the reasonable judgment of the Placement Agent, makes it impractical or inadvisable to proceed with the completion of the
sale of and payment for the Securities on the Closing Date on the terms and in the manner contemplated by this Agreement, the Disclosure
Package and the Prospectus, or (ii) since the time of execution of this Agreement or the earlier respective dates as of which information
is given in the Disclosure Package, there has been, (A) in the reasonable judgment of the Placement Agent, any event that has resulted
in a Material Adverse Effect or (B) the Company shall have sustained a loss by strike, fire, flood, earthquake, accident or other
calamity of such character that would, in the reasonable judgment of the Placement Agent, individually or in the aggregate, result
in a Material Adverse Effect and which would, in the reasonable judgment of the Placement Agent, make it impracticable or inadvisable
to proceed with the offering or the delivery of the Securities on the terms and in the manner contemplated in the Disclosure Package. Any
such termination shall be without liability of any party to any other party except that the provisions of Section 5, Section
7, Section 9(b) and Section 12 hereof shall at all times be effective notwithstanding such termination.
(b) During
the six months following the termination of the Engagement Letter (as defined below), any person or entity to whom the Placement
Agent introduced the Company, or with whom there have been discussions or negotiations about an investment in the Company during
the term of the Placement Agent’s engagement on behalf of the Company, purchases securities from the Company, the Company
agrees to pay the Placement Agent upon the closing of such transaction a cash fee in the amount that would otherwise have been
payable to the Placement Agent if such transaction occurred during the term of the engagement letter by and between the Company
and the Placement Agent, dated September 12, 2016 (“Engagement Letter”).
10. Notices.
All statements, requests, notices and agreements hereunder shall be in writing or by facsimile, and:
(a) if
to the Placement Agent, shall be delivered or sent by mail, telex or facsimile transmission to:
Chardan Capital Markets, LLC
150 East 58th Street, 28th Fl
New York, New York 10155
Attention: Jonathan Schechter
Facsimile No.: (347) 801-2502
with a copy (which shall not constitute
notice) to:
Pryor Cashman LLP
7 Times Square
New York, New York 10036
Attention: M. Ali Panjwani, Esq.
Facsimile No.: (212) 798-6319
(b) if
to the Company shall be delivered or sent by mail, telex or facsimile transmission to:
Inventergy Global, Inc.
900 E. Hamilton Avenue, #180
Campbell, California 95008
Attn: Chief Executive Officer
Facsimile No.: 408-389-3517
Email: legal@inventergy.com
CFO@inventergy.com
Joe@inventergy.com
with a copy (which shall not constitute notice) to:
Ellenoff Grossman & Schole LLP
1345 Avenue of the Americas
New York, NY 10105
Facsimile No.: (212) 370-7889
Attention: Joshua N. Englard, Esq.
Any such notice shall be effective only
upon receipt. Any party to this Agreement may change such address for notices by sending to the parties to this Agreement
written notice of a new address for such purpose.
11. Persons
Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and shall be binding
upon the Placement Agent, the Company and their respective successors and assigns and the controlling persons, officers and directors
referred to in Section 7. Nothing in this Agreement is intended or shall be construed to give to any other person,
firm or corporation (including the Investors), other than the persons, firms or corporations mentioned in the preceding sentence,
any legal or equitable remedy or claim under or in respect of this Agreement, or any provision herein contained. The
term “successors and assigns” as herein used shall not include any purchaser of the Securities by reason merely of
such purchase.
12. Governing
Law. This Agreement shall be governed by and construed in accordance with the laws of the State
of New York, without giving effect to the conflicts of laws provisions thereof.
13. No
Fiduciary Relationship. The Company hereby acknowledges that the Placement Agent is acting solely
as Placement Agent in connection with the offering of the Company’s securities. The Company further acknowledges that the
Placement Agent is acting pursuant to a contractual relationship created solely by this Agreement entered into on an arm’s
length basis and in no event do the parties intend that the Placement Agent act or be responsible as a fiduciary to the Company,
its management, shareholders, creditors or any other person in connection with any activity that the Placement Agent may undertake
or have undertaken in furtherance of the offering of the Company’s securities, either before or after the date hereof. The
Placement Agent hereby expressly disclaims any fiduciary or similar obligations to the Company, either in connection with the transactions
contemplated by this Agreement or any matters leading up to such transactions, and the Company hereby confirms its understanding
and agreement to that effect. The Company and the Placement Agent agree that they are each responsible for making their own independent
judgments with respect to any such transactions, and that any opinions or views expressed by the Placement Agent to the Company
regarding such transactions, including but not limited to any opinions or views with respect to the price or market for the Company’s
securities, do not constitute advice or recommendations to the Company. The Company hereby waives and releases, to the fullest
extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged
breach of any fiduciary or similar duty to the Company in connection with the transactions contemplated by this Agreement or any
matters leading up to such transactions.
14. Entire
Agreement. This Agreement, together with the schedules and exhibits attached hereto and as the
same may be amended from time to time in accordance with the terms hereof, contains the entire agreement among the parties hereto
relating to the subject matter hereof and there are no other or further agreements outstanding not specifically mentioned herein,
except for Section 3 of the Engagement Letter, which governs the term of the relationship between the Company and Chardan.
15. Headings.
The Section headings in this Agreement have been inserted as a matter of convenience of reference and are not a part of this Agreement.
16. Amendments
and Waivers. No supplement, modification or waiver of this Agreement shall be binding unless
executed in writing by the party to be bound thereby. The failure of a party to exercise any right or remedy shall not be deemed
or constitute a waiver of such right or remedy in the future. No waiver of any of the provisions of this Agreement shall be deemed
or shall constitute a waiver of any other provision hereof (regardless of whether similar), nor shall any such waiver constitute
a continuing waiver unless otherwise expressly provided.
17. Submission
to Jurisdiction. Except as set forth below, no Proceeding may be commenced, prosecuted or continued
in any court other than the courts of the State of New York located in the City and County of New York or in the United States
District Court for the Southern District of New York, which courts shall have jurisdiction over the adjudication of such matters,
and the parties hereto hereby consent to the jurisdiction of such courts and personal service with respect thereto. The parties
hereto hereby waive all right to trial by jury in any Proceeding (whether based upon contract, tort or otherwise) in any way arising
out of or relating to this Agreement. The parties hereto agrees that a final judgment in any such Proceeding brought in any such
court shall be conclusive and binding upon the parties and may be enforced in any other courts in the jurisdiction of which the
parties are or may be subject, by suit upon such judgment.
18. Counterparts.
This Agreement may be executed in one or more counterparts and, if executed in more than one counterpart, the executed counterparts
shall each be deemed to be an original and all such counterparts shall together constitute one and the same instrument. Delivery
of an executed counterpart by facsimile shall be effective as delivery of a manually executed counterpart thereof.
[Signature pages follow]
If the foregoing is
in accordance with your understanding of the agreement between the Company and the Placement Agent, kindly indicate your acceptance
in the space provided for that purpose below.
| |
Very truly yours, |
| |
|
| |
INVENTERGY GLOBAL, INC. |
| |
By: |
/s/ Joseph Beyers |
| |
|
Name: Joseph Beyers |
| |
|
Title: Chairman & CEO |
Accepted as of
the date first above written:
CHARDAN CAPITAL MARKETS, LLC
| By: |
/s/ Steve Urbach |
|
| |
Name: Steve Urbach |
| |
Title: CEO |
Signature
Page to Placement Agency Agreement
Schedules and Exhibits
| Schedule I: |
Issuer General Free Writing Prospectuses |
| |
|
| Schedule II: |
Individuals Subject to Lock-ups |
| |
|
| Exhibit A: |
Form of Securities Purchase Agreement |
| |
|
| Exhibit B: |
Pricing Information |
| |
|
| Exhibit C: |
Disclosure Materials |
| |
|
| Exhibit D: |
Lock-up Agreement |
| |
|
| Exhibit E: |
Form of Warrant |
Schedule I
Issuer General Free Writing Prospectuses
None.
Issuer Limited-Use Free Writing Prospectuses
None.
Schedule II
Individuals Subject to Lock-Ups
Joseph W. Beyers
John G. Niedermaier
Francis P. Barton
W. Frank King
Marshall Phelps, Jr.
Robert A. Gordon
Exhibit A
Form
of Securities Purchase Agreement
Exhibit B
Pricing Information
Number of Shares to be Sold: 6,000,000
Number of Warrants to be Sold: 6,000,000
Offering Price: $1.00
Exercise Price of Warrants: $1.00, exercisable until October
[ ], 2021.
Aggregate Placement Agency Fees: $480,000
Exhibit C
Disclosure Materials
None.
Exhibit D
Form of Lock-Up Agreement
October ___, 2016
Chardan Capital Markets, LLC
150 East 58th Street, 28th Fl
New York, NY 10155
Ladies and Gentlemen:
The undersigned understands
that Chardan Capital Markets, LLC (“Chardan”) proposes to enter into a Placement Agency Agreement (the “Placement
Agency Agreement”) with Inventergy Global, Inc., a Delaware corporation (the “Company”), pursuant
to which Chardan will act as exclusive placement agent to the Company in the sale (the “Public Offering”) by
the Company to certain investors of the Company’s Common Stock, par value $0.001 per share (the “Common Stock”).
To induce Chardan to
continue its efforts in connection with the Public Offering, the undersigned hereby agrees that, without the prior written consent
of Chardan, it will not, during the period commencing on the date hereof and ending 90 days after the date of the final prospectus
supplement relating to the Public Offering (the “Prospectus”) (the “Lock-Up Period”), (1)
offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock, or (2) enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any
such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise. The foregoing sentence shall not apply to (a) transactions relating to shares of Common Stock or other securities
acquired in open market transactions after the completion of the Public Offering, provided, that no filing under
Section 16(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) shall be required
or shall be voluntarily made in connection with subsequent sales of Common Stock or other securities acquired in such open market
transactions, (b) transfers of Common Stock or any security convertible into Common Stock as a bona fide gift, by will or intestacy
or to a family member or trust for the benefit of a family member; provided, that in the case of any transfer or
distribution pursuant to clause (b), (i) each donee or distributee shall sign and deliver a lock-up letter substantially in
the form of this letter and (ii) if the undersigned is required to file a report under Section 16(a) of the Exchange Act, reporting
a reduction in beneficial ownership of Common Stock or any securities convertible into or exercisable or exchangeable for Common
Stock during the Lock-Up Period, the undersigned shall include a statement in such report to the effect that such transfer is being
made as a gift, by will or intestate succession, as applicable, or (c) forfeitures of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock to satisfy tax withholding obligations of the undersigned in connection with
the vesting of restricted stock pursuant to the Company’s stock incentive plans, which forfeitures may require the undersigned
to file a report under Section 16(a) of the Exchange Act reporting a reduction in beneficial ownership of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock during the Lock-Up Period. In addition, the undersigned agrees
that, without the prior written consent of Chardan, it will not, during the period commencing on the date hereof and ending 90
days after the date of the Prospectus, make any demand for or exercise any right with respect to, the registration of any Common
Stock or any security convertible into or exercisable or exchangeable for Common Stock. The undersigned also agrees and consents
to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the undersigned’s
Common Stock except in compliance with the foregoing restrictions.
If (i) the Company
issues an earnings release or material news, or a material event relating to the Company occurs, during the last 17 days of the
Lock-Up Period, or (ii) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results
during the 16-day period beginning on the last day of the Lock-Up Period, the restrictions imposed by this agreement shall continue
to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material
news or material event, unless Chardan waives such extension; provided, however, that this sentence shall not apply if (A)
the Company meets the applicable requirements of Rule 139(a)(1) under the Securities Act in the manner contemplated by NASD Conduct
Rule 2711(f)(4) (B) the Company’s securities are “actively traded” as defined in Rule 101(c)(1) of Regulation
M of the Exchange Act and (C) the provisions of NASD Conduct Rule 2711(f)(4) do not restrict the publication or distribution, by
Chardan, of any research reports relating to the Company during the 15 days before or after the last day of the Lock-up Period
(before giving effect to such extension).
No provision in this
agreement shall be deemed to restrict or prohibit the exercise or exchange by the undersigned of any option or warrant to acquire
Common Stock, or securities exchangeable or exercisable for or convertible into Common Stock, provided, that
the undersigned does not transfer the Common Stock acquired on such exercise or exchange during the Lock-Up Period, unless otherwise
permitted pursuant to the terms of this agreement. In addition, no provision herein shall be deemed to restrict or prohibit the
entry into or modification of a written plan meeting the requirements of Rule 10b5-1 under the Exchange Act at any time (other
than the entry into or modification of such a plan in such a manner as to cause the sale of any Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock within the Lock-Up Period).
The undersigned understands
that the Company and Chardan are relying upon this agreement in proceeding toward consummation of the Public Offering. The undersigned
further understands that this agreement is irrevocable and shall be binding upon the undersigned’s heirs, legal representatives,
successors and assigns.
The undersigned understands
that, if (i) the Placement Agency Agreement is not executed by October 31, 2016, (ii) the Company notifies Chardan in writing that
it does not intend to proceed with the Public Offering or (iii) the Placement Agency Agreement (other than the provisions thereof
which survive termination) shall terminate or be terminated prior to payment for and delivery of the Common Stock to be sold thereunder,
the undersigned shall be released from all obligations under this letter agreement.
Whether or not the
Public Offering actually occurs depends on a number of factors, including market conditions. Any Public Offering will only be made
pursuant to a Placement Agency Agreement, the terms of which are subject to negotiation between the Company and Chardan.
This letter agreement
shall be governed by, and construed in accordance with, the laws of the State of New York.
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Very truly yours, |
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(Name) |
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(Address) |
Exhibit E
Form of Warrant
