Exhibit 2.1
PLACEMENT AGENCY AGREEMENT
_________ __, 2015
Aegis Capital Corp.
810 Seventh Avenue, 18th Floor
New York, New York 10019
Ladies and Gentlemen:
Introduction.
Subject to the terms and conditions herein (this “Agreement”), Sino-Global Shipping America, Ltd., a Virginia
corporation (the “Company”), hereby agrees to sell up to an aggregate of $_______ of registered securities of
the Company, including, but not limited to, _____ shares (the “Shares”) of the Company’s common stock,
no par value per share (the "Common Stock”), Common Stock purchase warrants to purchase up to an aggregate of
_______ shares of Common Stock (the “Warrants”) and the shares of Common Stock underlying the Warrants (the
“Warrant Shares” and, together with the Shares and Warrants, collectively, the “Securities”)
directly to various investors (each, an “Investor” and, collectively, the “Investors”) through
Aegis Capital Corp., as exclusive placement agent (the “Placement Agent”). The purchase price to the Investors
for each Share is $____ and the exercise price to the Investors for each share of Common Stock issuable upon exercise of the Warrants
is $_____. The Placement Agent may retain other registered brokers or dealers who are FINRA members to act as sub-agents or selected-dealers
on its behalf in connection with the Offering (as defined below). The Placement Agent will conduct the Offering (as defined below)
on a “firm-wide” basis, subject to suitability and/or other compliance rules and regulations that the Placement Agent
is subject to under FINRA’s rules and regulations.
The Company hereby
confirms its agreement with the Placement Agent as follows:
Section 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 Agreement, the Placement Agent shall be the exclusive Placement Agent in connection with the offer and sale by the Company
of the Securities pursuant to the Company's Registration Statement, as defined below, with the terms of such offering (the “Offering”)
to be subject to market conditions and negotiations between the Company and the Placement Agent. The Placement Agent will act on
a reasonable best efforts basis and the Company agrees and acknowledges that there is no guarantee of the successful placement
of the Securities, or any portion thereof, in the prospective Offering. Under no circumstances will the Placement Agent or any
of its “Affiliates” (as defined below) be obligated to underwrite or purchase any of the Securities for its own account
or otherwise provide any financing. The Placement Agent shall act solely as the Company’s agent and not as principal. The
Placement Agent shall have no authority to bind the Company with respect to any prospective offer to purchase Shares and the Company
shall have the sole right to accept offers to purchase Shares and may reject any such offer, in whole or in part. Subject to the
terms and conditions hereof, payment of the purchase price for, and delivery of, the Securities shall be made at one or more closings
(each a “Closing” and the date on which each Closing occurs, a “Closing Date”). We expect
to have one Closing. As compensation for services rendered, on each Closing Date, the Company shall pay to the Placement Agent
the fees and expenses set forth below:
(i) A cash
fee equal to 7% of the gross proceeds received by the Company from the sale of the Securities at the applicable Closing of the
Offering; plus a non-accountable expense allowance equal to 1% of the gross proceeds received by the Company from the sale of the
Securities at the applicable Closing of the Offering.
(ii) Such
number of Common Stock purchase warrants (the “Placement Agent Warrants”) to the Placement Agent or its designees
at each Closing to purchase shares of Common Stock equal to 5% of the aggregate number of Shares sold in the applicable Closing
of the Offering. The Placement Agent Warrants shall have the same terms as the warrants issued to the Investors in the Offering,
provided that the exercise price shall be 125% of the public offering price per share and the expiration date shall be 5 years
from the effective date of the Registration Statement, and such Placement Agent Warrants shall not be exercisable for a period
of 180 days from the effective date of the Registration Statement. The Placement Agent Warrants shall have a cashless exercise
provision and one demand registration right and unlimited piggyback registration rights for the term of the Placement Agent Warrants,
but shall not have any price-based anti-dilution provision. The Placement Agent Warrants shall not be transferable for 180 days
from the date of effectiveness or commencement of sales in the Offering except as permitted by Financial Industry Regulatory Authority
(“FINRA”) Rule 5110(g)(1). The number of Placement Agent Warrants issuable at Closing shall be subject to reduction
to whatever extent is necessary to comply with the compensation limits imposed by FINRA Rule 5110.
(iii) The
Company also agrees to reimburse Placement Agent’s expenses (with supporting invoices/receipts) up to a maximum of $35,000
for Placement Agent’s counsel, plus up to a further $20,000 for actual road show expenses. Placement Agent acknowledges receipt
of the sum of $25,000 against such expenses prior to the execution of this Placement Agency Agreement, and the balance of the reimbursement
shall be payable immediately upon (but only in the event of) a Closing of the Offering. In the event the Offering is terminated
prior to a Closing, the maximum reimbursement of the Placement Agent’s expenses shall be $35,000, which amount includes all
expenses incurred in conducting background checks of the Company’s officers and directors. The Company shall pay other expenses
as set forth in Section 7 of the engagement letter between us dated January 21, 2015, without duplication.
(b) For
a period of twelve (12) months following the date of the commencement of sales in connection with the Offering, if the Company
or any Subsidiary or successor of the Company determines to raise funds by means of a public offering or a private placement of
equity, equity linked or debt securities using an investment bank, underwriter or placement agent, the Placement Agent shall have
the right to act as sole investment bank, sole underwriter or sole placement agent for such financing on terms (including commissions
and discounts) not less favorable to the Company or such Subsidiary or successor as may be elsewhere obtained by the Company (the
“Right of First Refusal”); provided, however, notwithstanding anything to the contrary provided
herein or elsewhere, in no event shall the Right of First Refusal of the Placement Agent be applicable to any debt, equity and/or
any other financing undertaken by the Company if the net proceeds therefrom shall be used solely for the purpose of acquiring a
ship vessel and/or any other acquisitions of specific businesses and/or assets of a third party and not used for general working
capital or to fund a potential acquisition pool (“Acquisition Funding”). If the Placement Agent fails to accept
in writing its role in the public or private sale of equity or debt securities within 5 business days of receipt of notice from
the Company or such Subsidiary or successor of such offering, Placement Agent will have no claim or right with respect to any such
offering in such notice. If the Placement Agent determines to accept such engagement, the agreement governing such engagement will
contain the provisions of this Agreement as are applicable (other than economic fee or compensatory arrangements or provisions),
including indemnification, and other customary provisions which are appropriate to transactions of similar size and nature. Notwithstanding
anything to the contrary contained herein, this Section 1(b) shall be subject to compliance with FINRA Rule 5110(f)(2)(D). In connection
with the right of first refusal set forth in this Section 1(b), the Placement shall have no more than one opportunity to waive
or terminate such right of first refusal in consideration of any payment or fee in compliance with FINRA Rule 5110(f)(2)(E)(ii)
(c) The
term of the Placement Agent's exclusive engagement will be until the completion or termination of the Offering (the “Exclusive
Term”); provided, however, that a party hereto may terminate the engagement with respect to itself at any
time upon 5 days written notice to the other parties; provided, however, notwithstanding anything to the contrary
provided herein or elsewhere the Placement Agent’s exclusive engagement shall not apply to Acquisition Financing. Notwithstanding
anything to the contrary contained herein, the provisions concerning confidentiality, indemnification and contribution contained
herein and the Company’s obligations contained in the indemnification provisions will survive any expiration or termination
of this Agreement, and the Company’s obligation to pay fees actually earned and payable and to reimburse expenses actually
incurred and reimbursable pursuant to Section 1 hereof and which are permitted to be reimbursed under FINRA Rule 5110(f)(2)(D)(i),
will survive any expiration or termination of this Agreement. Nothing in this Agreement shall be construed to limit the ability
of the Placement Agent or its Affiliates to pursue, investigate, analyze, invest in, or engage in investment banking, financial
advisory or any other business relationship with Persons (as defined below) other than the Company. As used herein (i) “Persons”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind and (ii) “Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common
control with a Person as such terms are used in and construed under Rule 405 under the Securities Act of 1933, as amended (the
“Securities Act”).
Section 2. Representations,
Warranties and Covenants of the Company. The Company hereby represents, warrants and covenants to the Placement Agent as of
the date hereof, and as of each Closing Date, as follows:
(a) Securities
Law Filings. The Company has filed with the Securities and Exchange Commission (the “Commission”) the Registration
Statement on Form S-1 (File No. 333-199160) under the Securities Act of 1933, as amended (the “Securities Act”),
which was filed on October 3, 2014, and as amended from time to time, and which became effective on ______, 2015 for the registration
under the Securities Act of the Securities. The Company will file with the Commission pursuant to Rules 430A and 424(b) under the
Securities Act, and the rules and regulations (the “Rules and Regulations”) of the Commission promulgated thereunder,
a final prospectus relating to the placement of the Securities, their respective pricings and the plan of distribution thereof
(the “Final Prospectus”) and has advised the Placement Agent of all further information (financial and other)
with respect to the Company required to be set forth therein. Such registration statement, at any given time, including the exhibits
thereto filed at such time, as amended at such time, is hereinafter called the “Registration Statement”; such
prospectus in the form in which it appears in the Registration Statement is hereinafter called the “Preliminary Prospectus”.
The Registration Statement at the time it originally becomes effective is hereinafter called the “Original Registration
Statement.” The Company has not received any notice that the Commission has issued or intends to issue a stop order suspending
the effectiveness of the Registration Statement or the use of the Preliminary Prospectus or the Final Prospectus or intends to
commence a proceeding for any such purpose.
(b) Assurances.
The Original Registration Statement contains all exhibits and schedules as required by the Securities Act and at the time it became
effective, complied in all material respects with the Securities Act and the applicable Rules and Regulations and did 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 Preliminary Prospectus and the Final Prospectus as of its respective dates, each complied
in all material respects with the Securities Act and the applicable Rules and Regulations. The Preliminary Prospectus does not
and the Final Prospectus will not, contain as of the respective dates thereof any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made,
not misleading. No post-effective amendment to the original Registration Statement reflecting any facts or events arising after
the date thereof which represent, individually or in the aggregate, a fundamental change in the information set forth therein is
required to be filed with the Commission. Except for this Agreement, there are no documents required to be filed with the Commission
in connection with the transaction contemplated hereby that (x) have not been filed as required pursuant to the Securities Act
or (y) will not be filed within the requisite time period. Except for this Agreement, there are no contracts or other documents
required to be described in the Preliminary Prospectus or the Final Prospectus, or to be filed as exhibits or schedules to the
Registration Statement, which have not been described or filed as required.
(c) Offering
Materials. Neither the Company nor any of its directors and officers has distributed and none of them will distribute, prior
to each Closing Date, any offering material in connection with the offering and sale of the Securities other than the Final Prospectus,
and any other materials permitted by the Securities Act.
(d) Subsidiaries.
All of the direct and indirect subsidiaries of the Company (the “Subsidiaries”) are set forth in the Registration
Statement. Except as set forth in the Registration Statement, the Company owns, directly or indirectly, all of the capital stock
or other equity interests of each Subsidiary free and clear of any liens, charges, security interests, encumbrances, rights of
first refusal, preemptive rights or other restrictions (collectively, “Liens”), and all of the issued and outstanding
shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar
rights to subscribe for or purchase securities.
(e) Organization
and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized, validly
existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power
and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company
nor any Subsidiary is in violation nor default of any of the provisions of its respective certificate or articles of incorporation,
bylaws or other organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified to conduct business
and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted
or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as
the case may be, could not have or reasonably be expected to result in: (i) a material adverse effect on the legality, validity
or enforceability of this Agreement or any other agreement entered into between the Company and the Investors, (ii) a material
adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise) of the Company and
the Subsidiaries, taken as a whole, or (iii) a material adverse effect on the Company’s ability to perform in any material
respect on a timely basis its obligations under this Agreement or the transactions contemplated under the Prospectus Supplement
(any of (i), (ii) or (iii), a “Material Adverse Effect”) and no an action, claim, suit, investigation or proceeding
(including, without limitation, an informal investigation or partial proceeding, such as a deposition), whether commenced or threatened
(“Proceeding”) has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke,
limit or curtail such power and authority or qualification.
(f) Authorization;
Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated
by this Agreement and the Preliminary Prospectus and the Final Prospectus and otherwise to carry out its obligations hereunder
and thereunder. The execution and delivery of each of this Agreement by the Company and the consummation by it of the transactions
contemplated hereby and thereby and under the Preliminary Prospectus and the Final Prospectus have been duly authorized by all
necessary action on the part of the Company and no further action is required by the Company, the Company’s Board of Directors
(the “Board of Directors”) or the Company’s stockholders in connection therewith other than in connection
with the Required Approvals (as defined below). This Agreement has been duly executed by the Company and, when delivered in accordance
with the terms hereof, will constitute the valid and binding obligation of the Company enforceable against the Company in accordance
with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium
and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating
to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification
and contribution provisions may be limited by applicable law.
(g) No
Conflicts. The execution, delivery and performance by the Company of this Agreement and the transactions contemplated pursuant
to the Final Prospectus, the issuance and sale of the Securities and the consummation by it of the transactions contemplated hereby
and thereby to which it is a party do not and will not (i) conflict with or violate any provision of the Company’s or any
Subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter documents, or (ii) conflict
with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the
creation of any Lien upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights of termination,
amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt
or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary
is a party or by which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required
Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction
of any court or governmental authority to which the Company or a Subsidiary is subject (including federal and state securities
laws and regulations), or by which any property or asset of the Company or a Subsidiary is bound or affected; except in the case
of each of clauses (ii) and (iii), such as could not have or reasonably be expected to result in a Material Adverse Effect.
(h) Filings,
Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any notice
to, or make any filing or registration with, any court or other federal, state, local or other governmental authority or other
Person in connection with the execution, delivery and performance by the Company of this Agreement and the transactions contemplated
pursuant to the Preliminary Prospectus and the Final Prospectus other than: (i) the filing with the Commission of the Final Prospectus,
(ii) application(s) to the Nasdaq Capital Market (the “Trading Market”) for the listing of the Shares for trading
thereon in the time and manner required thereby and (iii) such filings as are required to be made under applicable state securities
laws (collectively, the “Required Approvals”).
(i) Issuance
of the Securities; Registration. The Shares are duly authorized and, when issued and paid for in accordance with the Final
Prospectus, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company.
The Warrants are duly authorized and valid and binding obligations of the Company in accordance with their terms. The shares underlying
the Warrants (the “Warrant Shares”), when issued in accordance with the terms of the Warrants, will be validly
issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company. The Company has reserved from its duly
authorized capital stock the maximum number of shares of Common Stock issuable pursuant to the Final Prospectus.
(j) Capitalization.
The capitalization of the Company is as set forth in the Preliminary Prospectus and the Final Prospectus. The Company has not issued
any capital stock since its most recently filed periodic report under the Exchange Act, other than pursuant to the exercise of
employee stock options under the Company’s stock option plans, the issuance of shares of Common Stock to employees pursuant
to the Company’s employee stock purchase plans and pursuant to the conversion and/or exercise of securities of the Company
or the Subsidiaries which would entitle the holder thereof to acquire at any time any Common Stock, including, without limitation,
any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exercisable or
exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock (“Common Stock Equivalents”)
outstanding as of the date of the most recently filed periodic report under the Exchange Act. No Person has any right of first
refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by this
Agreement and the transactions contemplated pursuant to the Preliminary Prospectus or the Final Prospectus. Except as a result
of the purchase and sale of the Securities as disclosed in the Final Prospectus, there are no outstanding options, warrants, scrip
rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible
into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any shares of Common Stock,
or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to issue
additional shares of Common Stock or Common Stock Equivalents. The issuance and sale of the Securities will not obligate the Company
to issue shares of Common Stock or other securities to any Person (other than the Investors) and will not result in a right of
any holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of such securities. All
of the outstanding shares of capital stock of the Company are validly issued, fully paid and nonassessable, have been issued in
compliance with all federal and state securities laws, and none of such outstanding shares was issued in violation of any preemptive
rights or similar rights to subscribe for or purchase securities. No further approval or authorization of any stockholder, the
Board of Directors or others is required for the issuance and sale of the Securities. There are no stockholders agreements, voting
agreements or other similar agreements with respect to the Company’s capital stock to which the Company is a party or, to
the knowledge of the Company, between or among any of the Company’s stockholders.
(k) SEC
Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required
to be filed by the Company under the Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof (the foregoing
materials, including the exhibits thereto and documents incorporated by reference therein, together with the Final Prospectus,
being collectively referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension
of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective
dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable,
and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading. The financial statements of the Company included in the SEC Reports comply in all material respects
with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the
time of filing. Such financial statements have been prepared in accordance with United States generally accepted accounting principles
applied on a consistent basis during the periods involved (“GAAP”), except as may be otherwise specified in
such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required
by GAAP, and fairly present in all material respects the financial position of the Company and its consolidated Subsidiaries as
of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited
statements, to normal, immaterial, year-end audit adjustments.
(l) Material
Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included
within the Preliminary Prospectus and the Final Prospectus, except as specifically disclosed in the Preliminary Prospectus and
the Final Prospectus, (i) there has been no event, occurrence or development that has had or that could reasonably be expected
to result in a Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent or otherwise) other than
(A) trade payables and accrued expenses incurred in the ordinary course of business consistent with past practice and (B) liabilities
not required to be reflected in the Company’s financial statements pursuant to GAAP or disclosed in filings made with the
Commission, (iii) the Company has not altered its method of accounting, (iv) the Company has not declared or made any dividend
or distribution of cash or other property to its stockholders or purchased, redeemed or made any agreements to purchase or redeem
any shares of its capital stock and (v) the Company has not issued any equity securities to any officer, director or Affiliate,
except pursuant to existing Company stock option plans. The Company does not have pending before the Commission any request for
confidential treatment of information. Except for the issuance of the Securities contemplated by the Final Prospectus, no event,
liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist with
respect to the Company or its Subsidiaries or their respective business, prospects, properties, operations, assets or financial
condition that would be required to be disclosed by the Company under applicable securities laws at the time this representation
is made or deemed made that has not been publicly disclosed at least 1 Trading Day prior to the date that this representation is
made.
(m) Litigation.
There is no action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the knowledge of the Company,
threatened against or affecting the Company, any Subsidiary or any of their respective properties before or by any court, arbitrator,
governmental or administrative agency or regulatory authority (federal, state, county, local or foreign) (collectively, an “Action”)
which (i) adversely affects or challenges the legality, validity or enforceability of any of this Agreement and the transactions
contemplated pursuant to the Final Prospectus or the Securities or (ii) could, if there were an unfavorable decision, have or reasonably
be expected to result in a Material Adverse Effect. Neither the Company nor any Subsidiary, nor any director or officer thereof,
is or has been the subject of any Action involving a claim of violation of or liability under federal or state securities laws
or a claim of breach of fiduciary duty. There has not been, and to the knowledge of the Company, there is not pending or contemplated,
any investigation by the Commission involving the Company or any current or former director or officer of the Company. The Commission
has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company or
any Subsidiary under the Exchange Act or the Securities Act.
(n) Labor
Relations. No material labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees
of the Company, which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its Subsidiaries’
employees is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary, and neither
the Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries believe
that their relationships with their employees are good. No executive officer, to the knowledge of the Company, is, or is now expected
to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary information agreement
or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third party, and the
continued employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability with
respect to any of the foregoing matters. The Company and its Subsidiaries are in compliance with all U.S. federal, state, local
and foreign laws and regulations relating to employment and employment practices, terms and conditions of employment and wages
and hours, except where the failure to be in compliance could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
(o) Compliance.
Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred that has not been
waived that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under), nor has the
Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture,
loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is
bound (whether or not such default or violation has been waived), (ii) is in violation of any judgment, decree or order of any
court, arbitrator or governmental body or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any
governmental authority, including without limitation all foreign, federal, state and local laws relating to taxes, environmental
protection, occupational health and safety, product quality and safety and employment and labor matters, except in each case as
could not have or reasonably be expected to result in a Material Adverse Effect.
(p) Regulatory
Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal,
state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the Final Prospectus,
except where the failure to possess such permits could not reasonably be expected to result in a Material Adverse Effect (“Material
Permits”), and neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation
or modification of any Material Permit.
(q) Title
to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned by them
and good and marketable title in all personal property owned by them that is material to the business of the Company and the Subsidiaries,
in each case free and clear of all Liens, except for Liens as do not materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries and Liens for the payment
of federal, state or other taxes, the payment of which is neither delinquent nor subject to penalties. Any real property and facilities
held under lease by the Company and the Subsidiaries are held by them under valid, subsisting and enforceable leases with which
the Company and the Subsidiaries are in compliance.
(r) Patents
and Trademarks. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications, trademarks,
trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property
rights and similar rights necessary or material for use in connection with their respective businesses as described in the Final
Prospectus and which the failure to so have could have a Material Adverse Effect (collectively, the “Intellectual Property
Rights”). None of, and neither the Company nor any Subsidiary has received a notice (written or otherwise) that any of,
the Intellectual Property Rights has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned,
within two (2) years from the date of this Agreement. Neither the Company nor any Subsidiary has received, since the date of the
latest audited financial statements included within the Preliminary Prospectus and the Final Prospectus, a notice (written or otherwise)
of a claim or otherwise has any knowledge that the Intellectual Property Rights violate or infringe upon the rights of any Person,
except as would not have a Material Adverse Effect. To the knowledge of the Company, all such Intellectual Property Rights are
enforceable and there is no existing infringement by another Person of any of the Intellectual Property Rights. The Company and
its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality and value of all of their intellectual
properties, except where failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(s) Insurance.
The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and
in such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged, including,
but not limited to, directors and officers insurance coverage. Neither the Company nor any Subsidiary has any reason to believe
that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage
from similar insurers as may be necessary to continue its business without a significant increase in cost.
(t) Transactions
With Affiliates and Employees. Except as set forth in the Preliminary Prospectus and the Final Prospectus, none of the officers
or directors of the Company and, to the knowledge of the Company, none of the employees of the Company is presently a party to
any transaction with the Company or any Subsidiary (other than for services as employees, officers and directors), including any
contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer, director or such employee or, to the knowledge of
the Company, any entity in which any officer, director, or any such employee has a substantial interest or is an officer, director,
trustee or partner, in each case in excess of $120,000 other than for (i) payment of salary or consulting fees for services rendered,
(ii) reimbursement for expenses incurred on behalf of the Company and (iii) other employee benefits, including stock option agreements
under any stock option plan of the Company.
(u) Sarbanes-Oxley;
Internal Accounting Controls. The Company is in compliance with any and all applicable requirements of the Sarbanes-Oxley Act
of 2002 that are effective as of the date hereof, and any and all applicable rules and regulations promulgated by the Commission
thereunder that are effective as of the date hereof and as of each Closing Date. The Company and the Subsidiaries maintain a system
of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance with
management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance
with management’s general or specific authorization, and (iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company has established
disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and designed such
disclosure controls and procedures to ensure that information required to be disclosed by the Company in the reports it files or
submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s
rules and forms. The Company’s certifying officers have evaluated the effectiveness of the Company’s disclosure controls
and procedures as of the end of the period covered by the Company’s most recently filed periodic report under the Exchange
Act (such date, the “Evaluation Date”). The Company presented in its most recently filed periodic report under
the Exchange Act the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures based
on their evaluations as of the Evaluation Date. Since the Evaluation Date, there have been no changes in the Company’s internal
control over financial reporting (as such term is defined in the Exchange Act) that has materially affected, or is reasonably likely
to materially affect, the Company’s internal control over financial reporting.
(v) Certain
Fees. Except as set forth in the Final Prospectus, no brokerage or finder’s fees or commissions are or will be payable
by the Company to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other Person
with respect to the transactions contemplated by this Agreement and the transactions contemplated pursuant to the Final Prospectus.
The Investors shall have no obligation with respect to any fees or with respect to any claims made by or on behalf of other Persons
for fees of a type contemplated in this Section that may be due in connection with the transactions contemplated by this Agreement
and the transactions contemplated pursuant to the Final Prospectus.
(w) Investment
Company. The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the Securities, will
not be or be an Affiliate of, an “investment company” within the meaning of the Investment Company Act of 1940, as
amended. The Company shall conduct its business in a manner so that it will not become an “investment company” subject
to registration under the Investment Company Act of 1940, as amended.
(x) Registration
Rights. No Person has any right to cause the Company to effect the registration under the Securities Act of any securities
of the Company.
(y) Listing
and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and the
Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration
of the Common Stock under the Exchange Act nor has the Company received any notification that the Commission is contemplating terminating
such registration. The Company has not, in the 12 months preceding the date hereof, received notice from any Trading Market on
which the Common Stock is or has been listed or quoted to the effect that the Company is not in compliance with the listing or
maintenance requirements of such Trading Market. The Company is, and has no reason to believe that it will not in the foreseeable
future continue to be, in compliance with all such listing and maintenance requirements.
(z) Application
of Takeover Protections. The Company and the Board of Directors have taken all necessary action, if any, in order to render
inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights agreement)
or other similar anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents)
or the laws of its state of incorporation that is or could become applicable to the Investors as a result of the Investors and
the Company fulfilling their obligations or exercising their rights under this Agreement and the transactions contemplated pursuant
to the Final Prospectus, including without limitation as a result of the Company’s issuance of the Securities and the Investors’
ownership of the Securities.
(aa) Disclosure.
Except with respect to the material terms and conditions of the transactions contemplated by this Agreement and the transactions
contemplated pursuant to the Preliminary Prospectus and the Final Prospectus, the Company confirms that neither it nor any other
Person acting on its behalf has provided any of the Investors or their agents or counsel with any information that it believes
constitutes or might constitute material, non-public information which is not otherwise disclosed in the Preliminary Prospectus
and the Final Prospectus. The Company understands and confirms that the Investors will rely on the foregoing representation in
effecting transactions in securities of the Company. All of the disclosure furnished by or on behalf of the Company to the Investors
regarding the Company, its business and the transactions contemplated hereby, is true and correct and does not contain any untrue
statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in light
of the circumstances under which they were made, not misleading. The press releases disseminated by the Company during the twelve
months preceding the date of this Agreement taken as a whole do not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances
under which they were made and when made, not misleading.
(bb) No
Integrated Offering. Neither the Company, nor any of its Affiliates, nor any Person acting on its or their behalf has, directly
or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would
cause this offering of the Securities to be integrated with prior offerings by the Company for purposes of any applicable shareholder
approval provisions of any Trading Market on which any of the securities of the Company are listed or designated.
(cc) Solvency.
Based on the consolidated financial condition of the Company as of each Closing Date, after giving effect to the receipt by the
Company of the proceeds from the sale of the Securities hereunder, (i) the fair saleable value of the Company’s assets exceeds
the amount that will be required to be paid on or in respect of the Company’s existing debts and other liabilities (including
known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably small capital to carry
on its business as now conducted and as proposed to be conducted including its capital needs taking into account the particular
capital requirements of the business conducted by the Company, and projected capital requirements and capital availability thereof,
and (iii) the current cash flow of the Company, together with the proceeds the Company would receive, were it to liquidate all
of its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in respect
of its liabilities when such amounts are required to be paid. The Company does not intend to incur debts beyond its ability to
pay such debts as they mature (taking into account the timing and amounts of cash to be payable on or in respect of its debt).
The Company has no knowledge of any facts or circumstances which lead it to believe that it will file for reorganization or liquidation
under the bankruptcy or reorganization laws of any jurisdiction within one year from each Closing Date. The SEC Reports sets forth
as of the date hereof all outstanding secured and unsecured Indebtedness of the Company or any Subsidiary, or for which the Company
or any Subsidiary has commitments. For the purposes of this Agreement, “Indebtedness” means (x) any liabilities
for borrowed money or amounts owed in excess of $250,000 (other than trade accounts payable incurred in the ordinary course of
business), (y) all guaranties, endorsements and other contingent obligations in respect of indebtedness of others, whether or not
the same are or should be reflected in the Company’s balance sheet (or the notes thereto), except guaranties by endorsement
of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business; and (z) the present
value of any lease payments in excess of $250,000 due under leases required to be capitalized in accordance with GAAP. Neither
the Company nor any Subsidiary is in default with respect to any Indebtedness.
(dd) Tax
Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a
Material Adverse Effect, the Company and each Subsidiary (i) has made or filed all United States federal and state income and all
foreign income and franchise tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has
paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such
returns, reports and declarations and (iii) has set aside on its books provision reasonably adequate for the payment of all material
taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid taxes in
any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company or of any Subsidiary
know of no basis for any such claim.
(ee) Foreign
Corrupt Practices. Neither the Company, nor to the knowledge of the Company, any agent or other person acting on behalf of
the Company, has (i) directly or indirectly, used any funds for unlawful contributions, gifts, entertainment or other unlawful
expenses related to foreign or domestic political activity, (ii) made any unlawful payment to foreign or domestic government officials
or employees or to any foreign or domestic political parties or campaigns from corporate funds, (iii) failed to disclose fully
any contribution made by the Company (or made by any person acting on its behalf of which the Company is aware) which is in violation
of law, or (iv) violated in any material respect any provision of the Foreign Corrupt Practices Act of 1977, as amended.
(ff) Accountants.
The Company’s accounting firm is set forth in the Preliminary Prospectus and the Final Prospectus. To the knowledge and belief
of the Company, such accounting firm (i) is a registered public accounting firm as required by the Exchange Act and (ii) shall
express its opinion with respect to the financial statements to be included in the Company’s Annual Report for the year ending
June 30, 2015.
(gg) Regulation
M Compliance. The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly or indirectly,
any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of any of the Securities, (ii) sold, bid for, purchased, or, paid any compensation for soliciting purchases
of, any of the Securities, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any
other securities of the Company, other than, in the case of clauses (ii) and (iii), compensation paid to the Company’s placement
agent in connection with the placement of the Securities.
(hh) Office
of Foreign Assets Control. Neither the Company nor, to the Company's knowledge, any director, officer, agent, employee or affiliate
of the Company is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury
Department (“OFAC”).
(ii) U.S.
Real Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation within the
meaning of Section 897 of the Internal Revenue Code of 1986, as amended, and the Company shall so certify upon Investor’s
request.
(jj) Bank
Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding Company Act
of 1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the
“Federal Reserve”). Neither the Company nor any of its Subsidiaries or Affiliates owns or controls, directly
or indirectly, five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent or
more of the total equity of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither
the Company nor any of its Subsidiaries or Affiliates exercises a controlling influence over the management or policies of a bank
or any entity that is subject to the BHCA and to regulation by the Federal Reserve.
(kk) Money
Laundering. The operations of the Company are and have been conducted at all times in compliance with applicable financial
record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, applicable
money laundering statutes and applicable rules and regulations thereunder (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.
(ll) Certificates.
Any certificate signed by an officer of the Company and delivered to the Placement Agent or to counsel for the Placement
Agent shall be deemed to be a representation and warranty by the Company to the Placement Agent as to the matters set forth
therein.
(mm) Reliance.
The Company acknowledges that the Placement Agent will rely upon the accuracy and truthfulness of the foregoing representations
and warranties and hereby consents to such reliance.
(nn) FINRA
Affiliations. There are no affiliations with any FINRA member firm among the Company’s officers, directors or, to the
knowledge of the Company, any five percent (5%) or greater stockholder of the Company.
Section 3. Delivery
and Payment. Each Closing shall occur at the offices of the Ellenoff Grossman & Schole LLP, 1345 Avenue of the Americas,
New York, New York 10105 (or at such other place as shall be agreed upon by the Placement Agent and the Company) (“Placement
Agent Counsel”). Subject to the terms and conditions hereof, at each Closing payment of the purchase price for the Shares
and Warrants sold on such Closing Date shall be made by Federal Funds wire transfer, against delivery of such Securities, and such
Securities shall be registered in such name or names and shall be in such denominations, as the Placement Agent may request at
least one business day before the time of purchase (as defined below).
Deliveries of the documents
with respect to the purchase of the Securities, if any, shall be made at the offices of Placement Agent Counsel. All actions taken
at a Closing shall be deemed to have occurred simultaneously.
Section 4. Covenants
and Agreements of the Company. The Company further covenants and agrees with the Placement Agent as follows:
(a) Registration
Statement Matters. The Company will advise the Placement Agent promptly after it receives notice thereof of the time when any
amendment to the Registration Statement has been filed or becomes effective or any supplement to the Preliminary Prospectus or
the Final Prospectus has been filed and will furnish the Placement Agent with copies thereof. The Company will file promptly all
reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to
Section 13(a), 14 or 15(d) of the Exchange Act subsequent to the date of the Final Prospectus for so long as the delivery of a
prospectus is required in connection with the Offering. The Company will advise the Placement Agent, promptly after it receives
notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus
or for additional information, and (ii) 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 the Preliminary
Prospectus or the Final Prospectus or any amendment or supplement thereto or any post-effective amendment to the Registration Statement,
of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, of the institution or threatened
institution of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the
Registration Statement or the Final Prospectus or for additional information. The Company shall use its best efforts to prevent
the issuance of any such stop order or prevention or suspension of such use. If the Commission shall enter any such stop
order or order or notice of prevention or suspension at any time, the Company will use its best efforts to obtain the lifting of
such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new
registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with
the provisions of Rules 424(b), 430A, 430B and 430C, as applicable, under the Securities Act, including with respect to the
timely filing of documents thereunder, and will use its reasonable efforts to confirm that any filings made by the Company under
such Rule 424(b) are received in a timely manner by the Commission.
(b) Blue
Sky Compliance. The Company will cooperate with the Placement Agent and the Investors in endeavoring to qualify the Securities
for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Investors may
reasonably request and will make such applications, file such documents, and furnish such information as may be reasonably required
for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction where it is not now so qualified or required to file such a consent, and provided further
that the Company shall not be required to produce any new disclosure document other than a Prospectus Supplement. The Company will,
from time to time, prepare and file such statements, reports and other documents as are or may be required to continue such qualifications
in effect for so long a period as the Placement Agent may reasonably request for distribution of the Securities. The Company will
advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to)
the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose,
and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its
best efforts to obtain the withdrawal thereof at the earliest possible moment. The Company shall reimburse the Placement Agent
the sum of $5,000 for its Blue Sky counsel fees at the first Closing.
(c) Amendments
and Supplements to the Prospectus and Other Matters. The Company will comply with the Securities Act and the Exchange Act,
and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Securities
as contemplated in this Agreement, and the Preliminary Prospectus and the Final Prospectus. If during the period in which a prospectus
is required by law to be delivered in connection with the distribution of Securities (the “Prospectus Delivery Period”),
any event shall occur as a result of which, in the judgment of the Company or in the opinion of the Placement Agent or counsel
for the Placement Agent, it becomes necessary to amend or supplement the Preliminary Prospectus or the Final Prospectus in order
to make the statements therein, in the light of the circumstances under which they were made, as the case may be, not misleading,
the Company will promptly prepare and file with the Commission, and furnish at its own expense to the Placement Agent and to dealers,
an appropriate amendment to the Registration Statement or supplement to the Preliminary Prospectus or the Final Prospectus, s applicable,
that is necessary in order to make the statements in the applicable Prospectus as so amended or supplemented, in the light of the
circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, or any Prospectus
Supplement, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the
Preliminary Prospectus or the Final Prospectus or any Prospectus Supplement in connection with the Offering, the Company will furnish
the Placement Agent with a copy of such proposed amendment or supplement and will not file any such amendment or supplement to
which the Placement Agent reasonably objects.
(d) Copies
of any Amendments and Supplements to a Prospectus Supplement. The Company will furnish the Placement Agent, without charge,
during the period beginning on the date hereof and ending on the later of the last Closing Date of the Offering, as many copies
of the Preliminary Prospectus and the Final Prospectus and any Prospectus Supplement and any amendments and supplements thereto
as the Placement Agent may reasonably request.
(e) Free
Writing Prospectus. The Company covenants that it will not, unless it obtains the prior written consent of the Placement Agent,
make any offer relating to the Securities that would constitute an Company Free Writing Prospectus or that would otherwise constitute
a “free writing prospectus” (as defined in Rule 405 of the Securities Act) required to be filed by the Company
with the Commission or retained by the Company under Rule 433 of the Securities Act. In the event that the Placement Agent expressly
consents in writing to any such free writing prospectus (a “Permitted Free Writing Prospectus”), the Company
covenants that it shall (i) treat each Permitted Free Writing Prospectus as an Company Free Writing Prospectus, and (ii) comply
with the requirements of Rule 164 and 433 of the Securities Act applicable to such Permitted Free Writing Prospectus, including
in respect of timely filing with the Commission, legending and record keeping. The Parties hereto agree that the free writing prospectus
filed with the Commission on or about February 23, 2015 is a Permitted Free Writing Prospectus.
(f) Transfer
Agent; Warrant Agent. The Company will maintain, at its expense, a registrar and transfer agent for the Common Stock and warrant
agent for the Warrants.
(g) Earnings
Statement. As soon as practicable and in accordance with applicable requirements under the Securities Act, but in any event
not later than 18 months after the last Closing Date, the Company will make generally available to its security holders and to
the Placement Agent an earnings statement, covering a period of at least 12 consecutive months beginning after the last Closing
Date, that satisfies the provisions of Section 11(a) and Rule 158 under the Securities Act.
(h) Periodic
Reporting Obligations. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission
and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the
manner required by the Exchange Act.
(i) Additional
Documents. The Company will enter into any subscription, purchase or other customary agreements as the Placement Agent
or the Investors deem necessary or appropriate to consummate the Offering, all of which will be in form and substance reasonably
acceptable to the Placement Agent and the Investors. The Company agrees that the Placement Agent may rely upon, and each is a third
party beneficiary of, the representations and warranties, and applicable covenants, set forth in any such purchase, subscription
or other agreement with Investors in the Offering.
(j) No
Manipulation of Price. The Company will not take, directly or indirectly, any action designed to cause or result
in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any
securities of the Company in violation of Regulation M.
(k) Acknowledgment.
The Company acknowledges that any advice given by the Placement Agent to the Company is solely for the benefit and use of the Board
of Directors of the Company and may not be used, reproduced, disseminated, quoted or referred to, without the Placement Agent's
prior written consent.
Section 5. Conditions
of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder shall be subject to the accuracy
of the representations and warranties on the part of the Company set forth in Section 2 hereof, in each case as of the date hereof
and as of each Closing Date as though then made (except if any such representation or warranty speaks as to a different date),
to the timely performance by each of the Company of its covenants and other obligations hereunder on and as of such dates, and
to each of the following additional conditions:
(a) Accountants’
Comfort Letter. On the date hereof, the Placement Agent shall have received, and the Company shall have caused to be delivered
to the Placement Agent, a letter from Friedman LLP (the independent registered public accounting firm of the Company), addressed
to the Placement Agent, dated as of the date hereof, in form and substance satisfactory to the Placement Agent. The letter shall
not disclose any change in the condition (financial or other), earnings, operations, business or prospects of the Company from
that set forth in the Incorporated Documents or the applicable Prospectus Supplement, which, in the Placement Agent's sole judgment,
is material and adverse and that makes it, in the Placement Agent's sole judgment, impracticable or inadvisable to proceed with
the Offering of the Securities as contemplated by such Prospectus Supplement.
(b) Compliance
with Registration Requirements; No Stop Order; No Objection from the FINRA. The Final Prospectus (in accordance with Rule 424(b))
and “free writing prospectus” (as defined in Rule 405 of the Securities Act), if any, shall have been duly filed
with the Commission, as appropriate; no stop order suspending the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no order preventing
or suspending the use of any Preliminary or Final Prospectus or Prospectus Supplement shall have been issued and no proceeding
for that purpose shall have been initiated or threatened by the Commission; no order having the effect of ceasing or suspending
the distribution of the Securities or any other securities of the Company shall have been issued by any securities commission,
securities regulatory authority or stock exchange and no proceedings for that purpose shall have been instituted or shall be pending
or, to the knowledge of the Company, contemplated by any securities commission, securities regulatory authority or stock exchange;
all requests for additional information on the part of the Commission shall have been complied with; and the FINRA shall have raised
no objection to the fairness and reasonableness of the placement terms and arrangements.
(c) Corporate
Proceedings. All corporate proceedings and other legal matters in connection with this Agreement, the Registration Statement
and the Final Prospectus, and the registration, sale and delivery of the Securities, shall have been completed or resolved in a
manner reasonably satisfactory to the Placement Agent's counsel, and such counsel shall have been furnished with such papers and
information as it may reasonably have requested to enable such counsel to pass upon the matters referred to in this Section 5.
The Company shall provide evidence of due organization and current existence of each of its operating subsidiaries.
(d) No
Material Adverse Change. Subsequent to the execution and delivery of this Agreement and prior to each Closing Date, in the
Placement Agent's sole judgment after consultation with the Company, there shall not have occurred any Material Adverse Change
or Material Adverse Effect.
(e) Opinion
of Counsel for the Company. The Placement Agent shall have received on each Closing Date the favorable opinion of US legal
counsel to the Company, dated as of such Closing Date, including, without limitation, a negative assurance letter, addressed to
the Placement Agent and in form and substance satisfactory to the Placement Agent.
(f) Officers’
Certificate. The Placement Agent shall have received on each Closing Date a certificate of the Company, dated as of such Closing
Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, to the effect that, and the Placement Agent
shall be satisfied that, the signers of such certificate have reviewed the Registration Statement, the Preliminary Prospectus,
the Final Prospectus and any Prospectus Supplement, and this Agreement and to the further effect that:
(i) The
representations and warranties of the Company in this Agreement are true and correct, as if made on and as of such Closing Date,
and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied
at or prior to such Closing Date;
(ii) No
stop order suspending the effectiveness of the Registration Statement or the use of the Preliminary Prospectus or the Final Prospectus
or any Prospectus Supplement has been issued and no proceedings for that purpose have been instituted or are pending or, to the
Company’s knowledge, threatened under the Securities Act; no order having the effect of ceasing or suspending the distribution
of the Securities or any other securities of the Company has been issued by any securities commission, securities regulatory authority
or stock exchange in the United States and no proceedings for that purpose have been instituted or are pending or, to the knowledge
of the Company, contemplated by any securities commission, securities regulatory authority or stock exchange in the United States;
(iii) When
the Registration Statement became effective, at the time of sale, and at all times subsequent thereto up to the delivery of such
certificate, the Registration Statement contained all material information required to be included therein by the Securities Act
and the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material
respects conformed to the requirements of the Securities Act and the Exchange Act and the applicable rules and regulations of the
Commission thereunder, as the case may be, and the Registration Statement did not and does not include 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, in
the light of the circumstances under which they were made, not misleading (provided, however, that the preceding representations
and warranties contained in this paragraph (iii) shall not apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by the Placement Agent expressly for use therein) and, since the effective
date of the Registration Statement, there has occurred no event required by the Securities Act and the rules and regulations of
the Commission thereunder to be set forth in the Final Prospectus or Prospectus Supplement which has not been so set forth; and
(iv) Subsequent
to the respective dates as of which information is given in the Registration Statement, there has not been: (a) any Material Adverse
Change; (b) any transaction that is material to the Company and the Subsidiaries taken as a whole, except transactions entered
into in the ordinary course of business; (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries
taken as a whole, incurred by the Company or any Subsidiary, except obligations incurred in the ordinary course of business; (d)
any material change in the capital stock (except changes thereto resulting from the exercise of outstanding stock options or warrants)
or outstanding indebtedness of the Company or any Subsidiary; (e) any dividend or distribution of any kind declared, paid or made
on the capital stock of the Company; or (f) any loss or damage (whether or not insured) to the property of the Company or any Subsidiary
which has been sustained or will have been sustained which has a Material Adverse Effect.
(g) Bring-down
Comfort Letter. On each Closing Date, the Placement Agent shall have received from Friedman LLP, or such
other independent registered public accounting firm of the Company, a letter dated as of such Closing Date, in form and substance
satisfactory to the Placement Agent, to the effect that they reaffirm the statements made in the letter furnished pursuant
to subsection (a) of this Section 5, except that the specified date referred to therein for the carrying out of
procedures shall be no more than three business days prior to such Closing Date.
(h) Stock
Exchange Listing. The Common Stock shall be registered under the Exchange Act and shall be listed on the Trading Market, and
the Company shall not have taken any action designed to terminate, or likely to have the effect of terminating, the registration
of the Common Stock under the Exchange Act or delisting or suspending from trading the Common Stock from the Nasdaq Capital Market,
nor shall the Company have received any information suggesting that the Commission or the Nasdaq Capital Market is contemplating
terminating such registration or listing.
(i) Additional
Documents. On or before each Closing Date, the Placement Agent and counsel for the Placement Agent shall have received such
information and documents as they may reasonably require for the purposes 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.
If any condition specified
in this Section 5 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 on or prior to a Closing Date, which termination shall be without liability on the part of
any party to any other party, except that Section 6 (Payment of Expenses), Section 7 (Indemnification and Contribution) and Section
8 (Representations and Indemnities to Survive Delivery) shall at all times be effective and shall survive such termination.
Section 6. Payment
of Expenses. The Company agrees to pay all costs, fees and expenses incurred by the Company in connection with the performance
of its obligations hereunder and in connection with the transactions contemplated hereby, including, without limitation: (i) all
expenses incident to the issuance, delivery and qualification of the Securities (including all printing and engraving costs); (ii)
all fees and expenses of the registrar and transfer agent of the Common Stock; (iii) all necessary issue, transfer and other stamp
taxes in connection with the issuance and sale of the Securities; (iv) all fees and expenses of the Company’s counsel,
independent public or certified public accountants and other advisors; (v) all costs and expenses incurred in connection with the
preparation, printing, filing, shipping and distribution of the Registration Statement (including financial statements, exhibits,
schedules, consents and certificates of experts), the Preliminary Prospectus, the Final Prospectus and each Prospectus Supplement,
and all amendments and supplements thereto, and this Agreement; (vi) all filing fees, reasonable attorneys’ fees and expenses
incurred by the Company or the Placement Agent in connection with qualifying or registering (or obtaining exemptions from the qualification
or registration of) all or any part of the Securities for offer and sale under the state securities or blue sky laws or the securities
laws of any other country, and, if requested by the Placement Agent, preparing and printing a “Blue Sky Survey,”
an “International Blue Sky Survey” or other memorandum, and any supplements thereto, advising the Placement
Agent of such qualifications, registrations and exemptions, provided ,that such counsel fees shall be limited to $5,000; (vii)
if applicable, the filing fees incident to the review and approval by the FINRA of the Placement Agent's participation in the offering
and distribution of the Securities; (viii) the fees and expenses associated with including the Securities on the Trading Market;
(ix) all costs and expenses incident to the travel and accommodation of the Company’s and the Placement Agent's employees
on the “roadshow,” limited in the case of the Placement Agent, to $20,000; and (x) all other fees, costs and
expenses referred to in Part II of the Registration Statement.
Section 7. Indemnification
and Contribution.
(a) The Company
agrees to indemnify and hold harmless the Placement Agent, its affiliates and each person controlling the Placement Agent (within
the meaning of Section 15 of the Securities Act), and the directors, officers, agents and employees of the Placement Agent, its
affiliates and each such controlling person (the Placement Agent, and each such entity or person. an “Indemnified Person”)
from and against any losses, claims, damages, judgments, assessments, costs and other liabilities (collectively, the “Liabilities”),
and shall reimburse each Indemnified Person for all reasonable fees and expenses (including the reasonable fees and expenses of
one counsel for all Indemnified Persons, except as otherwise expressly provided herein) (collectively, the “Expenses”)
as they are incurred by an Indemnified Person in investigating, preparing, pursuing or defending any Actions, whether or not any
Indemnified Person is a party thereto, (i) caused by, or arising out of or in connection with, any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or by any omission or alleged omission to state therein
a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading
(other than untrue statements or alleged untrue statements in, or omissions or alleged omissions from, information relating to
an Indemnified Person furnished in writing by or on behalf of such Indemnified Person expressly for use in the Registration Statement
or (ii) otherwise arising out of or in connection with advice or services rendered or to be rendered by any Indemnified Person
pursuant to this Agreement, the transactions contemplated thereby or any Indemnified Person's actions or inactions in connection
with any such advice, services or transactions; provided, however, that, in no case shall the Company be responsible for
any Liabilities or Expenses of any Indemnified Person that are finally judicially determined to have resulted solely from such
Indemnified Person's (x) gross negligence or willful misconduct in connection with any of the advice, actions, inactions or services
referred to above or (y) use of any offering materials or information concerning the Company in connection with the offer or sale
of the Securities in the Offering which were not authorized for such use by the Company and which use constitutes gross negligence
or willful misconduct or (z) were based upon information in the Registration Statement or any Prospectus, including the Final Prospectus,
provided by the Placement Agent expressly to be included in the sections titled “Plan of Distribution” or “Placement
Agent Warrants” or relating thereto. The Company also agrees to reimburse each Indemnified Person for all Expenses as they
are incurred in connection with enforcing such Indemnified Person's rights under this Agreement; provided, however,
that notwithstanding anything to the contrary provided herein or elsewhere, if it is finally judicially determined that the Company
was not liable for any paid Liabilities and/or Expenses of any Indemnified Person, each such Indemnified Person shall reimburse
the Company for all paid Liabilities and/or Expenses of the Company; provided, further, that as a condition to paying
any such Liabilities and/or Expenses of any Indemnified Person such Indemnified Person agrees to sign an undertaking to immediately
reimburse the Company for all Company paid Liabilities and Expenses paid for on behalf of such person within five (5) days of it
being determined that the Company was not required under this Agreement to pay any such Liabilities and/or Expenses of such Indemnified
Person.
(b) Upon
receipt by an Indemnified Person of actual notice of an Action against such Indemnified Person with respect to which indemnity
may be sought under this Agreement, such Indemnified Person shall promptly notify the Company in writing; provided that failure
by any Indemnified Person so to notify the Company shall not relieve the Company from any liability which the Company may have
on account of this indemnity or otherwise to such Indemnified Person, except to the extent the Company shall have been prejudiced
by such failure. The Company shall, if requested by the Placement Agent, assume the defense of any such Action including the employment
of counsel reasonably satisfactory to the Placement Agent, which counsel may also be counsel to the Company. Any Indemnified Person
shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Person unless: (i) the Company has failed promptly to assume the defense
and employ counsel or (ii) the named parties to any such Action (including any impeded parties) include such Indemnified Person
and the Company, and such Indemnified Person shall have been advised in the reasonable opinion of counsel that there is an actual
conflict of interest that prevents the counsel selected by the Company from representing both the Company (or another client of
such counsel) and any Indemnified Person; provided that the Company shall not in such event be responsible hereunder for the fees
and expenses of more than one firm of separate counsel for all Indemnified Persons in connection with any Action or related Actions,
in addition to any local counsel. The Company shall not be liable for any settlement of any Action effected without its written
consent (which shall not be unreasonably withheld). In addition, the Company shall not, without the prior written consent of the
Placement Agent (which shall not be unreasonably withheld), settle, compromise or consent to the entry of any judgment in or otherwise
seek to terminate any pending or threatened Action in respect of which indemnification or contribution may be sought hereunder
(whether or not such Indemnified Person is a party thereto) unless such settlement, compromise, consent or termination includes
an unconditional release of each Indemnified Person from all Liabilities arising out of such Action for which indemnification or
contribution may be sought hereunder. The indemnification required hereby shall be made by periodic payments of the amount thereof
during the course of the investigation or defense, as such expense, loss, damage or liability is incurred and is due and payable.
(c) In
the event that the foregoing indemnity is unavailable to an Indemnified Person other than in accordance with this Agreement, the
Company shall contribute to the Liabilities and Expenses paid or payable by such Indemnified Person in such proportion as is appropriate
to reflect (i) the relative benefits to the Company, on the one hand, and to the Placement Agent and any other Indemnified Person,
on the other hand, of the matters contemplated by this Agreement or (ii) if the allocation provided by the immediately preceding
clause is not permitted by applicable law, not only such relative benefits but also the relative fault of the Company, on the one
hand, and the Placement Agent and any other Indemnified Person, on the other hand, in connection with the matters as to which such
Liabilities or Expenses relate, as well as any other relevant equitable considerations; provided that in no event shall the Company
contribute less than the amount necessary to ensure that all Indemnified Persons, in the aggregate, are not liable for any Liabilities
and Expenses in excess of the amount of fees actually received by the Placement Agent pursuant to this Agreement. For purposes
of this paragraph, the relative benefits to the Company, on the one hand, and to the Placement Agent on the other hand, of the
matters contemplated by this Agreement shall be deemed to be in the same proportion as (a) the total aggregate dollar amount received
by the Company in the Offering, whether or not any such transaction is consummated, bears to (b) the fees paid to the Placement
Agent under this Agreement. Notwithstanding the above, no person guilty of fraudulent misrepresentation within the meaning of Section
11(f) of the Securities Act, as amended, shall be entitled to contribution from a party who was not guilty of fraudulent misrepresentation.
(d) The
Company also agrees that no Indemnified Person shall have any liability (whether direct or indirect, in contract or tort or otherwise)
to the Company for or in connection with advice or services rendered or to be rendered by any Indemnified Person pursuant to this
Agreement, the transactions contemplated thereby or any Indemnified Person's actions or inactions in connection with any such advice,
services or transactions except for Liabilities (and related Expenses) of the Company that are finally judicially determined to
have resulted solely from such Indemnified Person's gross negligence or willful misconduct in connection with any such advice,
actions, inactions or services.
(e) The
reimbursement, indemnity and contribution obligations of the Company set forth herein shall apply to any modification of this Agreement
and shall remain in full force and effect regardless of any termination of, or the completion of any Indemnified Person's services
under or in connection with, this Agreement.
Section 8. Representations
and Indemnities to Survive Delivery. The respective indemnities, agreements, representations, warranties and other statements
of the Company or any person controlling the Company, of its officers, and of the Placement Agent set forth in or made pursuant
to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of the Placement Agent,
the Company, or any of its or their partners, officers or directors or any controlling person, as the case may be, and will survive
delivery of and payment for the Securities sold hereunder and any termination of this Agreement. A successor to a Placement Agent,
or to the Company, its directors or officers or any person controlling the Company, shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Agreement.
Section 9. Notices.
All communications hereunder shall be in writing and shall be mailed, hand delivered or telecopied and confirmed to the parties
hereto as follows:
If to the Placement Agent to the address
set forth above, Attn: Mr. David Bocchi, Managing Director of Investment Banking, Facsimile: (212)
813-1047
With a copy to:
Ellenoff Grossman & Schole LLP
1345 Avenue of the Americas, 11th
Floor
New York, New York 10105
Facsimile: (212) 401-4741
Attention: Robert Charron
If to the Company:
Sino-Global Shipping America, Ltd.
1044 Northern Boulevard
Facsimile: (718) 888-1148
Attention: Anthony Chan
With a copy to:
Gusrae Kaplan Nusbaum PLLC
120 Wall Street, 25th Floor
New York, NY 10005
Facsimile: (212) 809-5449
Attention: Lawrence G. Nusbaum, Esq.
Any party hereto may
change the address for receipt of communications by giving written notice to the others.
Section 10. Successors.
This Agreement will inure to the benefit of and be binding upon the parties hereto, and to the benefit of the employees, officers
and directors and controlling persons referred to in Section 7 hereof, and to their respective successors, and personal representative,
and no other person will have any right or obligation hereunder.
Section 11. Partial
Unenforceability. The invalidity or unenforceability of any section, paragraph or provision of this Agreement shall not affect
the validity or enforceability of any other section, paragraph or provision hereof. If any Section, paragraph or provision of this
Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and
only such minor changes) as are necessary to make it valid and enforceable.
Section 12. Governing
Law Provisions. This Agreement shall be deemed to have been made and delivered in New York City and both this engagement letter
and the transactions contemplated hereby shall be governed as to validity, interpretation, construction, effect and in all other
respects by the internal laws of the State of New York, without regard to the conflict of laws principles thereof. Each of the
Placement Agent and the Company: (i) agrees that any legal suit, action or proceeding arising out of or relating to this engagement
letter and/or the transactions contemplated hereby shall be instituted exclusively in New York Supreme Court, County of New York,
or in the United States District Court for the Southern District of New York, (ii) waives any objection which it may have or hereafter
to the venue of any such suit, action or proceeding, and (iii) irrevocably consents to the jurisdiction of the New York Supreme
Court, County of New York, and the United States District Court for the Southern District of New York in any such suit, action
or proceeding. Each of the Placement Agent and the Company further agrees to accept and acknowledge service of any and all process
which may be served in any such suit, action or proceeding in the New York Supreme Court, County of New York, or in the United
States District Court for the Southern District of New York and agrees that service of process upon the Company mailed by certified
mail to the Company’s address shall be deemed in every respect effective service of process upon the Company, in any such
suit, action or proceeding, and service of process upon the Placement Agent mailed by certified mail to the Placement Agent’s
address shall be deemed in every respect effective service process upon the Placement Agent, in any such suit, action or proceeding.
Notwithstanding any provision of this engagement letter to the contrary, the Company agrees that neither the Placement Agent nor
its affiliates, and the respective officers, directors, employees, agents and representatives of the Placement Agent, its affiliates
and each other person, if any, controlling the Placement Agent or any of its affiliates, shall have any liability (whether direct
or indirect, in contract or tort or otherwise) to the Company for or in connection with the engagement and transaction described
herein except for any such liability for losses, claims, damages or liabilities incurred by us that are finally judicially determined
to have resulted from the bad faith or gross negligence of such individuals or entities. If either party shall commence an action
or proceeding to enforce any provision of this Agreement, then the prevailing party in such action or proceeding shall be reimbursed
by the other party for its reasonable attorney’s fees and other costs and expenses incurred with the investigation, preparation
and prosecution of such action or proceeding.
Section 13. General
Provisions.
(a) This
Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior written or oral and all contemporaneous
oral agreements, understandings and negotiations with respect to the subject matter hereof, other than the expense reimbursement
provisions of the engagement letter dated January 21, 2015. This Agreement may be executed in two or more counterparts, each one
of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This
Agreement may not be amended or modified unless in writing by all of the parties hereto, and no condition herein (express or implied)
may be waived unless waived in writing by each party whom the condition is meant to benefit. Section headings herein are for the
convenience of the parties only and shall not affect the construction or interpretation of this Agreement.
(b) The
Company acknowledges that in connection with the offering of the Securities: (i) the Placement Agent has acted at arms length,
are not agents of, and owe no fiduciary duties to the Company or any other person, (ii) the Placement Agent owes the Company only
those duties and obligations set forth in this Agreement and (iii) the Placement Agent may have interests that differ from those
of the Company. The Company waives to the full extent permitted by applicable law any claims it may have against the Placement
Agent arising from an alleged breach of fiduciary duty in connection with the offering of the Securities
[The remainder of this page has been
intentionally left blank.]
If the foregoing is
in accordance with your understanding of our agreement, please sign below whereupon this instrument, along with all counterparts
hereof, shall become a binding agreement in accordance with its terms.
| |
Very truly yours, |
| |
|
| |
SINO-GLOBAL SHIPPING AMERICA, LTD.,
a Virginia corporation |
| |
|
| |
By: |
|
| |
|
Name: |
| |
|
Title: |
| |
|
|
The foregoing Placement
Agency Agreement is hereby confirmed and accepted as of the date first above written.
| AEGIS CAPITAL CORP. |
|
| |
|
|
| By: |
|
|
|
Name: |
|
|
Title: |
|
| |
|
|
