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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported): November 30, 2023
POLAR
POWER, INC.
(Exact
Name of Registrant as Specified in Charter)
Delaware |
|
001-37960 |
|
33-0479020 |
(State
or Other Jurisdiction
of
Incorporation) |
|
(Commission
File
Number) |
|
(IRS
Employer
Identification
No.) |
249
E. Gardena Boulevard, Gardena, California 90248
(Address
of Principal Executive Offices) (Zip Code)
(310)
830-9153
(Registrant’s
telephone number, including area code)
N/A
(Former
name or former address, if changed since last report)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions (see General Instruction A.2. below):
☐ |
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|
|
☐ |
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
|
|
☐ |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
|
|
☐ |
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities
registered pursuant to Section 12(b) of the Act:
Title
of each class |
|
Trading
Symbol(s) |
|
Name
of each exchange on which registered |
Common
Stock, par value $0.0001 per share |
|
POLA |
|
The
NASDAQ Stock Market, LLC |
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company ☐
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item
1.01 |
Entry
into a Material Definitive Agreement. |
Underwritten
Offering of Common Stock
On
November 30, 2023, Polar Power, Inc. (the “Company”) entered into an underwriting agreement (the “Underwriting Agreement”)
with ThinkEquity LLC, as the representative (the “Representative”) of the several underwriters named therein (collectively,
the “Underwriters”), pursuant to which the Company agreed to sell to the Underwriters an aggregate of 4,000,000 shares (the
“Shares”) of the Company’s common stock, $0.0001 par value per share, at a price to the public of $0.40 per share,
in a firm commitment underwritten public offering (the “Offering”). The Company also granted the Underwriters an option exercisable
for 45 days from the date of the Underwriting Agreement to purchase up to an additional 600,000 shares of common stock (or pre-funded
warrants in lieu thereof) solely for the purpose of covering over-allotments. All of the Shares in the Offering are being sold by the
Company.
The
Representative exercised the over-allotment option in full on December 4, 2023, to purchase an additional 600,000 shares of common
stock (the “Over-Allotment Exercise’). The Offering and closing on the Over-Allotment Exercise closed concurrently on
December 5, 2023. The net proceeds to the Company from the Offering and the Over-Allotment Exercise are expected to be approximately
$1.5 million after deducting underwriting discounts and commissions and other estimated offering expenses payable by the Company.
The Company plans to use the net proceeds from this Offering for general corporate purposes.
The
Offering was made pursuant to an effective registration statement on Form S-3 (Registration No. 333-252196) (the “Registration
Statement”) and a related prospectus and prospectus supplement, in each case filed with the Securities and Exchange Commission.
The
Underwriting Agreement contains customary representations, warranties, and agreements by the Company, and customary conditions to closing,
indemnification obligations of the Company and the Representative, including for liabilities under the Securities Act of 1933, as amended
(the “Securities Act”), other obligations of the parties and termination provisions.
The
Underwriting Agreement is attached hereto as Exhibit 1.1 to this Current Report on Form 8-K to provide investors and security holders
with information regarding their terms. It is not intended to provide any other factual information about the Company. The descriptions
of the material terms of the Underwriting Agreement are qualified in their entirety by reference to such exhibits. Readers should review
the Underwriting Agreement that is filed as an exhibit to this Current Report on Form 8-K for a complete understanding of the terms and
conditions associated with the Offering. The representations, warranties and covenants contained in the Underwriting Agreement were made
only for purposes of the Underwriting Agreement and as of specific dates, were solely for the benefit of the parties to the Underwriting
Agreement, and may be subject to limitations agreed upon by the contracting parties, including being qualified by confidential disclosures
exchanged between the parties in connection with the execution of the Underwriting Agreement.
Item
7.01 |
Regulation
FD Disclosure. |
On
November 30, 2023, the Company issued a press release announcing that it intended to make the Offering (“Launch PR”) and
a press release announcing the pricing and terms of the Offering (“Pricing PR”). On December 5, 2023, the Company issued
a press release announcing the closing of the Offering (“Closing PR”). Copies of these press releases are attached hereto
as Exhibits 99.1, 99.2 and 99.3, respectively, and are incorporated herein by reference. The information in this item shall not be deemed
“filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or
otherwise subject to the liabilities of Section 18, nor shall it be deemed incorporated by reference in any of the Company’s filings
under the Securities Act or the Exchange Act, except to the extent, if any, expressly set forth by specific reference in such filing.
In
connection with the Offering, the legal opinion letter of Loeb & Loeb LLP, counsel to the Company, regarding the validity of the
Shares is filed as Exhibit 5.1 to this Current Report on Form
8-K. The legal opinion letter is also filed with reference to, and is hereby incorporated by reference into, the Registration Statement.
Item
9.01 |
Financial
Statements and Exhibits. |
(*)
Filed herewith. The agreement filed as an exhibit to this report contains representations and warranties made by the parties thereto.
The assertions embodied in such representations and warranties are not necessarily assertions of fact, but a mechanism for the parties
to allocate risk. Accordingly, investors should not rely on the representations and warranties as characterizations of the actual state
of facts or for any other purpose at the time they were made or otherwise.
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
Date:
December 5, 2023
|
POLAR
POWER, INC. |
|
|
|
|
By: |
/s/
Arthur D. Sams |
|
|
Arthur
D. Sams President, Chief Executive Officer and Secretary |
Exhibit
1.1
UNDERWRITING
AGREEMENT
between
POLAR
POWER, INC.
and
THINKEQUITY
LLC
as
Representative of the Several Underwriters
POLAR
POWER, INC.
UNDERWRITING
AGREEMENT
New
York, New York
November 30, 2023
ThinkEquity
LLC
As
Representative of the several Underwriters named on Schedule 1 attached hereto
17 State Street, 41st Fl
New
York, NY 10004
Ladies
and Gentlemen:
The
undersigned, Polar Power, Inc., a corporation formed under the laws of the State of Delaware (collectively with its affiliates,
including, without limitation, all entities disclosed or described in the Registration Statement (as hereinafter defined) as being
affiliates of the “Company”), hereby confirms its agreement (this “Agreement”) with
ThinkEquity LLC (hereinafter referred to as “you” (including its correlatives) or the
“Representative”) and with the other underwriters named on Schedule 1 hereto for which the Representative
is acting as representative (the Representative and such other underwriters being collectively called the
“Underwriters” or, individually, an “Underwriter”) as follows:
1.
Purchase and Sale of Shares.
1.1
Firm Securities.
1.1.1.
Nature and Purchase of Firm Shares.
(i)
On the basis of the representations and warranties herein contained, but subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to the several Underwriters, an aggregate of 4,000,000 shares (the “Firm Shares”) of the
Company’s common stock, par value $0.0001 per share (the “Common Stock”) and/or pre-funded warrants (each, a
“Pre-Funded Warrant”, and in the aggregate, the “Firm Pre-Funded Warrants”) to purchase one share
of Common Stock at an exercise price of $0.0001 per share (the “Pre-Funded Warrant Shares”) until such time as the
Pre-Funded Warrants are exercised in full, subject to adjustment as provided in the Pre-Funded Warrants. The certificate evidencing the
Pre-Funded Warrants will be in the form attached hereto as Exhibit A.
(ii)
The Underwriters, severally and not jointly, agree to purchase from the Company the number of Firm Shares and Pre-Funded Warrants set
forth opposite their respective names on Schedule 1 attached hereto and made a part hereof at a purchase price of $0.376 per Firm
Share (94.0% of the per Firm Share offering price) and $0.3759 per Firm Pre-Funded Warrant (94.0% of the per Firm Share offering price
less $0.0001). The Firm Shares and the Firm Pre-Funded Warrants (collectively, the “Firm Securities”) are to be offered
initially to the public at the offering price set forth on the cover page of the Prospectus (as defined in Section 2.1.1 hereof).
1.1.2.
Shares Payment and Delivery.
(i)
Delivery and payment for the Firm Securities shall be made at 10:00 a.m., Eastern time, on the second (2nd) Business Day following
the date hereof (or the third (3rd) Business Day following the date hereof if the Registration Statement is declared effective
after 4:01 p.m., Eastern time) or at such earlier time as shall be agreed upon by the Representative and the Company, at the offices
of Blank Rome LLP, 1271 Avenue of the Americas, New York, NY 10020 (“Representative Counsel”), or at such other place
(or remotely by facsimile or other electronic transmission) as shall be agreed upon by the Representative and the Company. The hour and
date of delivery and payment for the Firm Securities is called the “Closing Date.”
(ii)
Payment for the Firm Securities shall be made on the Closing Date by wire transfer in Federal (same day) funds, payable to the order
of the Company upon delivery of the certificates (in form and substance satisfactory to the Underwriters) representing the Firm Securities
(or through the facilities of the Depository Trust Company (“DTC”)) for the account of the Underwriters. The Firm
Securities shall be registered in such name or names and in such authorized denominations as the Representative may request in writing
at least two (2) full Business Days prior to the Closing Date. The Company shall not be obligated to sell or deliver the Firm Securities
except upon tender of payment by the Representative for all of the Firm Securities. The term “Business Day” means
any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions are authorized or obligated by law
to close in New York, New York.
1.2
Over-allotment Option.
1.2.1.
Option Securities. For the purposes of covering any over-allotments in connection with the distribution and sale of the Firm Securities,
the Company hereby grants to the Underwriters an option to purchase up to 600,000 additional shares of Common Stock and/or Pre-Funded
Warrants to purchase up to 600,000 additional shares of Common Stock, together representing an aggregate of fifteen percent (15%) of
the Firm Securities sold in the offering, from the Company (the “Over-allotment Option”). Such up to 600,000 additional
shares of Common Stock, the net proceeds of which, if any, will be deposited with the Company’s account, are hereinafter referred
to as “Option Shares.” Such additional Pre-Funded Warrants to purchase up to 600,000 shares of Common Stock, the net
proceeds of which, if any, will be deposited with the Company’s account, are hereinafter referred to as “Option Pre-Funded
Warrants.” The Option Shares and Option Pre-Funded Warrants may be referred to herein collectively as the “Option
Securities.” The purchase price to be paid per Option Share and per Option Pre-Funded Warrant shall be equal to the price per
Firm Share and per Firm Pre-Funded Warrant in Section 1.1.1 hereof. The Firm Securities and the Option Securities are hereinafter referred
to together as the “Public Securities.” The Public Securities shall be issued directly by the Company and shall have
the rights and privileges described in the Registration Statement, the Disclosure Package and the Prospectus. The offering and sale of
the Public Securities is hereinafter referred to as the “Offering.”
1.2.2.
Exercise of Option. The Over-allotment Option granted pursuant to Section 1.2.1 hereof may be exercised by the Representative
as to all (at any time) or any part (from time to time) of the Option Securities within 45 days after the Closing Date. The Underwriters
shall not be under any obligation to purchase any Option Securities prior to the exercise of the Over-allotment Option. The Over-allotment
Option granted hereby may be exercised by the giving of oral notice to the Company from the Representative, which must be confirmed in
writing by overnight mail or facsimile or other electronic transmission setting forth the number of Option Securities and/or Option Pre-Funded
Warrants to be purchased and the date and time for delivery of and payment for the Option Securities and/or Option Pre-Funded Warrants
(the “Option Closing Date”), which shall not be later than two (2) full Business Days after the date of the notice
or such other time as shall be agreed upon by the Company and the Representative, at the offices of Representative Counsel or at such
other place (including remotely by facsimile or other electronic transmission) as shall be agreed upon by the Company and the Representative.
If such delivery and payment for the Option Securities does not occur on the Closing Date, the Option Closing Date will be as set forth
in the notice. Upon exercise of the Over-allotment Option with respect to all or any portion of the Option Securities, subject to the
terms and conditions set forth herein, (i) the Company shall become obligated to sell to the Underwriters the number of Option Securities
specified in such notice and (ii) each of the Underwriters, acting severally and not jointly, shall purchase that portion of the total
number of Option Securities then being purchased as set forth in Schedule 1 opposite the name of such Underwriter.
1.2.3.
Payment and Delivery. Payment for the Option Securities shall be made on the Option Closing Date by wire transfer in Federal (same
day) funds, payable to the order of the Company upon delivery to you of certificates (in form and substance reasonably satisfactory to
the Underwriters) representing the Option Shares and/or Option Pre-Funded Warrants (or through the facilities of DTC) for the account
of the Underwriters. The Option Securities shall be registered in such name or names and in such authorized denominations as the Representative
may request in writing at least one (1) full Business Day prior to the Option Closing Date. The Company shall not be obligated to sell
or deliver the Option Securities except upon tender of payment by the Representative for applicable Option Securities. The Option Closing
Date may be simultaneous with, but not earlier than, the Closing Date; and in the event that such time and date are simultaneous with
the Closing Date, the term “Closing Date” shall refer to the time and date of delivery of the Firm Securities and
Option Securities.
2.
Representations and Warranties of the Company. The Company represents and warrants to the Underwriters as of the Applicable Time
(as defined below), as of the Closing Date and as of the Option Closing Date, if any, as follows:
2.1
Filing of Registration Statement.
2.1.1.
Pursuant to the Securities Act. The Company has filed with the U.S. Securities and Exchange Commission (the “Commission”)
a “shelf” registration statement on Form S-3 (File No. 333-252196), including any related prospectus or prospectuses, for
the registration of the Public Securities under the Securities Act, which registration statement was prepared by the Company in all material
respects in conformity with the requirements of the Securities Act and the rules and regulations of the Commission under the Securities
Act (the “Securities Act Regulations”) and contains and will contain all material statements that are required to
be stated therein in accordance with the Securities Act and the Securities Act Regulations. Except as the context may otherwise require,
such registration statement on file with the Commission at any given time, including any amendments thereto to such time, exhibits and
schedules thereto at such time, documents filed as a part thereof or incorporated pursuant to Item 12 of Form S-3 under the Securities
Act at such time and the documents and information otherwise deemed to be a part thereof or included therein pursuant to Rule 430B of
the Securities Act Regulations (the “Rule 430B Information”) or otherwise pursuant to the Securities Act Regulations
at such time, is referred to herein as the “Registration Statement.” The Registration Statement at the time it originally
became effective is referred to herein as the “Initial Registration Statement.” If the Company files any registration
statement pursuant to Rule 462(b) of the Securities Act Regulations, then after such filing, the term “Registration Statement”
shall include such registration statement filed pursuant to Rule 462(b). The Registration Statement was declared effective by the Commission
on January 28, 2021.
The
prospectus in the form in which it was filed with the Commission in connection with the Initial Registration Statement is herein called
the “Base Prospectus.” Each preliminary prospectus supplement to the Base Prospectus (including the Base Prospectus
as so supplemented) that described the Public Securities and the Offering and omitted the Rule 430B Information and that was used prior
to the filing of the final prospectus supplement referred to in the following paragraph is herein called a “Preliminary Prospectus.”
Promptly
after the execution and delivery of this Agreement, the Company will prepare and file with the Commission a final prospectus supplement
to the Base Prospectus relating to the Public Securities and the Offering in accordance with the provisions of Rule 430B and Rule 424(b)
of the Securities Act Regulations. Such final prospectus supplement (including the Base Prospectus as so supplemented), in the form filed
with the Commission pursuant to Rule 424(b) under the Securities Act is herein called the “Prospectus.” Any reference
herein to the Base Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 under the Securities Act as of the date of such prospectus.
“Applicable
Time” means 6:15 p.m., Eastern time, on the date of this Agreement.
“Disclosure
Package” means any Issuer General Use Free Writing Prospectus issued at or prior to the Applicable Time, the Preliminary Prospectus
dated November 30, 2023 and the information included on Schedule 2-A hereto, all considered together.
“Issuer
Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 of the Securities Act
Regulations (“Rule 433”), including without limitation any “free writing prospectus” (as defined in Rule 405
of the Securities Act Regulations) relating to the Public Securities that is (i) required to be filed with the Commission by the
Company, (ii) a “road show that is a written communication” within the meaning of Rule 433(d)(8)(i), whether or not
required to be filed with the Commission, or (iii) exempt from filing with the Commission pursuant to Rule 433(d)(5)(i) because
it contains a description of the Public Securities or of the Offering that does not reflect the final terms, in each case in the form
filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records
pursuant to Rule 433(g).
“Issuer
General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general distribution to
prospective investors (other than a “bona fide electronic road show,” as defined in Rule 433 (the “Bona Fide
Electronic Road Show”)), as evidenced by its being specified in Schedule 2-B hereto.
“Issuer
Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not an Issuer General Use Free Writing
Prospectus.
2.1.2.
Pursuant to the Exchange Act. The Company has filed with the Commission a Form 8-A (File Number 001-37960) providing for the registration
pursuant to Section 12(b) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), of the shares
of Common Stock. The registration of the shares of Common Stock under the Exchange Act has been declared effective by the Commission
on or prior to the date hereof. The Company has taken no action designed to, or likely to have the effect of, terminating the registration
of the shares of Common Stock under the Exchange Act, nor has the Company received any notification that the Commission is contemplating
terminating such registration.
2.2
Stock Exchange Listing. The shares of Common Stock have been approved for listing on the Nasdaq Capital Market (the “Exchange”)
and the Company has taken no action designed to, or likely to have the effect of, delisting the shares of Common Stock from the Exchange,
nor has the Company received any notification that the Exchange is contemplating terminating such listing except as described in the
Registration Statement, the Disclosure Package and the Prospectus. The Company has submitted the Listing of Additional Shares Notification
Form with the Exchange with respect to the Offering of the Public Securities.
2.3
No Stop Orders, etc. Neither the Commission nor, to the Company’s knowledge, any state regulatory authority has issued any
order preventing or suspending the use of the Registration Statement, any Preliminary Prospectus or the Prospectus or has instituted
or, to the Company’s knowledge, threatened to institute, any proceedings with respect to such an order. The Company has complied
with each request (if any) from the Commission for additional information.
2.4
Disclosures in Registration Statement.
2.4.1.
Compliance with Securities Act and 10b-5 Representation.
(i)
Each of the Registration Statement and any post-effective amendment thereto, at the time it became effective (including each deemed effective
date with respect to the Underwriters pursuant to Rule 430B or otherwise under the Securities Act) complied and will comply in all material
respects with the requirements of the Securities Act and the Securities Act Regulations. The conditions for use of Form S-3, set forth
in the General Instructions thereto, including, but not limited to, General Instruction I.B.6 and other conditions related to the offer
and sale of the Public Securities, have been satisfied. Each Preliminary Prospectus and the Prospectus, at the time each was or will
be filed with the Commission, complied and will comply in all material respects with the requirements of the Securities Act and the Securities
Act Regulations. Each Preliminary Prospectus delivered to the Underwriters for use in connection with this Offering and the Prospectus
was or will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the
extent permitted by Regulation S-T.
(ii)
Neither the Registration Statement nor any amendment thereto, at its effective time, as of the Applicable Time, at the Closing Date or
at any Option Closing Date (if any), contained, contains or will contain an untrue statement of a material fact or omitted, omits or
will omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(iii)
The Disclosure Package, as of the Applicable Time, at the Closing Date or at any Option Closing Date (if any), did not, does not and
will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading; and each Issuer Limited Use Free Writing Prospectus hereto
does not conflict with the information contained in the Registration Statement, any Preliminary Prospectus or the Prospectus, and each
such Issuer Limited Use Free Writing Prospectus, as supplemented by and taken together with the Prospectus as of the Applicable Time,
did not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall
not apply to statements made or statements omitted in reliance upon and in conformity with written information furnished to the Company
with respect to the Underwriters by the Representative expressly for use in the Registration Statement, the Disclosure Package or the
Prospectus or any amendment thereof or supplement thereto. The parties acknowledge and agree that such information provided by or on
behalf of any Underwriter consists solely of the following disclosure contained in the “Underwriting” section of the Prospectus:
(i) the first sentence of the subsection entitled “Underwriting Discounts and Commissions” related to concessions; (ii) the
first paragraph under the subsection entitled “Stabilization;” and (iii) the first sentence under the subsection entitled
“Passive Market Making” (the “Underwriters Information”).
(iv)
Neither the Prospectus nor any amendment or supplement thereto (including any prospectus wrapper), as of its issue date, at the
time of any filing with the Commission pursuant to Rule 424(b), at the Closing Date or at any Option Closing Date, included, includes
or will include an untrue statement of a material fact or omitted, omits or will omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to the Underwriters’ Information.
(v)
The documents incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus, when they became effective
or were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Securities Act or
the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder and none of such documents contained any
untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated
by reference in the Registration Statement, the Disclosure Package and the Prospectus, when such documents become effective or are filed
with the Commission, as the case may be, will conform in all material respects to the requirements of the Securities Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission thereunder, and will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
2.4.2.
Disclosure of Agreements. The agreements and documents described in the Registration Statement, the Disclosure Package and the
Prospectus conform in all material respects to the descriptions thereof contained or incorporated by reference therein and there are
no agreements or other documents required by the Securities Act and the Securities Act Regulations to be described in the Registration
Statement, the Disclosure Package and the Prospectus or to be filed with the Commission as exhibits to the Registration Statement, or
to be incorporated by reference in the Registration Statement, the Disclosure Package or the Prospectus, that have not been so described
or filed or incorporated by reference. Each agreement or other instrument (however characterized or described) to which the Company is
a party or by which it is or may be bound or affected and (i) that is referred to or incorporated by reference in the Registration
Statement, the Disclosure Package and the Prospectus, or (ii) is material to the Company’s business, has been duly authorized
and validly executed by the Company, is in full force and effect in all material respects and is enforceable against the Company and,
to the Company’s knowledge the other parties thereto, in accordance with its terms, except (x) as such enforceability may
be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, (y) as enforceability
of any indemnification or contribution provision may be limited under the federal and state securities laws, and (z) that the remedy
of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion
of the court before which any proceeding therefor may be brought. None of such agreements or instruments has been assigned by the Company,
and neither the Company nor, to the Company’s knowledge, any other party is in default thereunder and, to the Company’s knowledge,
no event has occurred that, with the lapse of time or the giving of notice, or both, would constitute a default thereunder. To the Company’s
knowledge, performance by the Company of the material provisions of such agreements or instruments will not result in a violation of
any existing applicable law, rule, regulation, ordinance, judgment, order or decree of any governmental or regulatory agency, body, authority
or court, domestic or foreign, having jurisdiction over the Company or any of its assets or businesses (each, a “Governmental
Entity”), including, without limitation, those relating to environmental laws and regulations. Except as disclosed in the Registration
Statement, the Disclosure Package and the Prospectus, the Company has no subsidiaries and has no other interest, nominal or beneficial,
direct or indirect, in any other corporation, joint venture or other business entity.
2.4.3.
Prior Securities Transactions. No securities of the Company have been sold by the Company or by or on behalf of, or for the benefit
of, any person or persons controlling, controlled by or under common control with the Company, except as disclosed in the Registration
Statement, the Disclosure Package and the Preliminary Prospectus.
2.4.4.
Regulations. The disclosures in the Registration Statement, the Disclosure Package and the Prospectus concerning the effects of
federal, state, local and all foreign regulation on the Offering and the Company’s business as currently contemplated are accurate,
correct and complete in all material respects and no other such regulations are required to be disclosed in the Registration Statement,
the Disclosure Package and the Prospectus which are not so disclosed.
2.4.5.
No Other Distribution of Offering Materials. The Company has not, directly or indirectly, distributed and will not distribute
any offering material in connection with the Offering other than any Preliminary Prospectus, the Disclosure Package, the Prospectus and
other materials, if any, permitted under the Securities Act and consistent with Section 3.2 below.
2.5
Changes After Dates in Registration Statement.
2.5.1.
No Material Adverse Change. Since the respective dates as of which information is given in the Registration Statement, the Disclosure
Package and the Prospectus, except as otherwise specifically stated therein: (i) there has been no material adverse change in the
financial position or results of operations of the Company, nor any change or development that, singularly or in the aggregate, would
involve a material adverse change or a prospective material adverse change in or affecting the business, management, condition (financial
or otherwise), results of operations, stockholders’ equity, business, assets, properties or prospects of the Company (a “Material
Adverse Change”); (ii) there have been no material transactions entered into by the Company, other than as contemplated
pursuant to this Agreement; (iii) no officer or director of the Company has resigned from any position with the Company; and (iv)
the Company has not sustained any material loss or interference with its business or properties from fire, explosion, flood, earthquake,
hurricane, accident or other calamity.
2.5.2.
Recent Securities Transactions, etc. Subsequent to the respective dates as of which information is given in the Registration Statement,
the Disclosure Package and the Prospectus, and except as may otherwise be indicated or contemplated herein or disclosed in the Registration
Statement, the Disclosure Package and the Prospectus, the Company has not: (i) issued any securities or incurred any liability or
obligation, direct or contingent, for borrowed money; or (ii) declared or paid any dividend or made any other distribution on or
in respect to its capital stock.
2.5.3.
Disclosure in Commission Filings. Since October 26, 2021, (i) none of the Company’s filings with the Commission contained
any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; and (ii) the Company has made all filings with the Commission
required under the Exchange Act and the rules and regulations of the Commission promulgated thereunder (the “Exchange Act Regulations”).
2.6
Independent Accountants. To the knowledge of the Company, Weinberg & Company, P.A. (the “Auditor”), whose
report is filed with the Commission and included or incorporated by reference in the Registration Statement, the Disclosure Package and
the Prospectus, is an independent registered public accounting firm as required by the Securities Act and the Securities Act Regulations
and the Public Company Accounting Oversight Board. The Auditor has not, during the periods covered by the financial statements included
or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus, provided to the Company any non-audit
services, as such term is used in Section 10A(g) of the Exchange Act.
2.7
Financial Statements, etc. The financial statements, including the notes thereto and supporting schedules included or incorporated
by reference in the Registration Statement, the Disclosure Package and the Prospectus, fairly present the financial position and the
results of operations of the Company at the dates and for the periods to which they apply; and such financial statements have been prepared
in conformity with U.S. generally accepted accounting principles (“GAAP”), consistently applied throughout the periods
involved (provided that unaudited interim financial statements are subject to year-end audit adjustments that are not expected to be
material in the aggregate and do not contain all footnotes required by GAAP); and the supporting schedules included or incorporated by
reference in the Registration Statement present fairly the information required to be stated therein. Except as included therein, no
historical or pro forma financial statements or supporting schedules are required to be included or incorporated by reference in the
Registration Statement, the Disclosure Package or the Prospectus under the Securities Act or the Securities Act Regulations. The pro
forma and pro forma as adjusted financial information and the related notes, if any, included or incorporated by reference in the Registration
Statement, the Disclosure Package and the Prospectus have been properly compiled and prepared in accordance with the applicable requirements
of the Securities Act, the Securities Act Regulations, the Exchange Act and the Exchange Act Regulations and present fairly the information
shown therein, and the assumptions used in the preparation thereof are reasonable and the adjustments used therein are appropriate to
give effect to the transactions and circumstances referred to therein. All disclosures contained in the Registration Statement, the Disclosure
Package or the Prospectus, or incorporated or deemed incorporated by reference therein, regarding “non-GAAP financial measures”
(as such term is defined by the rules and regulations of the Commission), if any, comply with Regulation G of the Exchange Act and Item
10 of Regulation S-K of the Securities Act, to the extent applicable. Each of the Registration Statement, the Disclosure Package and
the Prospectus discloses all material off-balance sheet transactions, arrangements, obligations (including contingent obligations), and
other relationships of the Company with unconsolidated entities or other persons that may have a material current or future effect on
the Company’s financial condition, changes in financial condition, results of operations, liquidity, capital expenditures, capital
resources, or significant components of revenues or expenses. Except as disclosed in the Registration Statement, the Disclosure Package
and the Prospectus, (a) the Company has not incurred any material liabilities or obligations, direct or contingent, or entered into any
material transactions other than in the ordinary course of business, (b) the Company has not declared or paid any dividends or made any
distribution of any kind with respect to its capital stock, (c) there has not been any change in the capital stock of the Company, other
than in the course of business or any grants under any stock compensation plan, and (d) there has not been any material adverse change
in the Company’s long-term or short-term debt.
2.8
Authorized Capital; Options, etc. The Company had, at the date or dates indicated in the Registration Statement, the Disclosure
Package and the Prospectus, the duly authorized, issued and outstanding capitalization as set forth therein. Based on the assumptions
stated in the Registration Statement, the Disclosure Package and the Prospectus, the Company will have on the Closing Date the adjusted
stock capitalization set forth therein. Except as set forth in, or contemplated by, the Registration Statement, the Disclosure Package
and the Prospectus, on the date hereof, as of the Applicable Time and on the Closing Date and any Option Closing Date, there will be
no stock options, warrants, or other rights to purchase or otherwise acquire any authorized, but unissued shares of Common Stock of the
Company or any security convertible or exercisable into shares of Common Stock of the Company, or any contracts or commitments to issue
or sell shares of Common Stock or any such options, warrants, rights or convertible securities.
2.9
Valid Issuance of Securities, etc.
2.9.1.
Outstanding Securities. All issued and outstanding securities of the Company issued prior to the transactions contemplated by
this Agreement have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights
of rescission, rights of first refusal, rights of participation or similar rights with respect thereto or put rights, and are not subject
to personal liability by reason of being such holders; and none of such securities were issued in violation of the preemptive rights,
rights of first refusal or rights of participation or similar rights of any holders of any security of the Company or similar contractual
rights granted by the Company. The authorized shares of Common Stock conform in all material respects to all statements relating thereto
contained in the Registration Statement, the Disclosure Package and the Prospectus. The offers and sales of the outstanding shares of
Common Stock were at all relevant times either registered under the Securities Act and the applicable state securities or “blue
sky” laws or, based in part on the representations and warranties of the purchasers of such Shares, exempt from such registration
requirements.
2.9.2.
Securities Sold Pursuant to this Agreement. The Public Securities and the shares of Common Stock issuable upon exercise of the
Pre-Funded Warrants (collectively, the “Underlying Shares”) have been duly authorized for issuance and sale and, when
issued and paid for pursuant to the terms of this Agreement or the Pre-Funded Warrants, as applicable, will be validly issued, fully
paid and non-assessable; the holders thereof are not and will not be subject to personal liability by reason of being such holders; the
Public Securities and the Underlying Shares are not and will not be subject to the preemptive rights of any holders of any security of
the Company or similar contractual rights granted by the Company; and all corporate action required to be taken for the authorization,
issuance and sale of the Public Securities and the Underlying Shares has been duly and validly taken. The Public Securities conform in
all material respects to all statements with respect thereto contained in the Registration Statement, the Disclosure Package and the
Prospectus. All corporate action required to be taken for the authorization, issuance and sale of the Pre-Funded Warrants has been duly
and validly taken; the Underlying Shares have been duly authorized and reserved for issuance by all necessary corporate action on
the part of the Company; the holders thereof are not and will not be subject to personal liability by reason of being such holders;
and such shares of Common Stock are not and will not be subject to the preemptive rights of any holders of any security of the Company
or similar contractual rights granted by the Company.
2.10
Registration Rights of Third Parties. No holders of any securities of the Company or any rights exercisable for or convertible
or exchangeable into securities of the Company have the right to require the Company to register any such securities of the Company under
the Securities Act or to include any such securities in a registration statement to be filed by the Company.
2.11
Validity and Binding Effect of Agreements. This Agreement, and the Pre-Funded Warrants have been duly and validly authorized by
the Company, and, when executed and delivered, will constitute, the valid and binding agreements of the Company, enforceable against
the Company in accordance with their respective terms, except: (i) as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights generally; (ii) as enforceability of any indemnification or contribution
provision may be limited under the federal and state securities laws; and (iii) that the remedy of specific performance and injunctive
and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding
therefor may be brought.
2.12
No Conflicts, etc. The execution, delivery and performance by the Company of this Agreement and the Pre-Funded Warrants and all
ancillary documents, the consummation by the Company of the transactions herein and therein contemplated and the compliance by the Company
with the terms hereof and thereof do not and will not, with or without the giving of notice or the lapse of time or both: (i) result
in a material breach of, or conflict with any of the terms and provisions of, or constitute a material default under, or result in the
creation, modification, termination or imposition of any lien, charge, mortgage, pledge, security interest, claim, equity, trust or other
encumbrance, preferential arrangement or restriction of any kind whatsoever upon any portion of any property or assets of the Company
pursuant to the terms of any indenture, mortgage, deed of trust, note, lease, loan agreement or any other agreement or instrument, license
or permit to which the Company is a party or as to which any property of the Company is a party or any of its assets are bound; (ii) result
in any violation of the provisions of the Company’s Certificate of Incorporation (as the same may be amended or restated from time
to time, the “Charter”) or the by-laws of the Company (as the same may be amended or restated from time to time);
or (iii) violate any existing applicable law, rule, regulation, judgment, order or decree of any Governmental Entity as of the date
hereof.
2.13
No Defaults; Violations. No material default exists in the due performance and observance of any term, covenant or condition of
any material license, contract, indenture, mortgage, deed of trust, note, loan or credit agreement, or any other agreement or instrument
evidencing an obligation for borrowed money, or any other material agreement or instrument to which the Company is a party or by which
the Company may be bound or to which any of the properties or assets of the Company is subject. The Company is not in violation of any
term or provision of its Charter or by-laws, or in violation of any franchise, license, permit, applicable law, rule, regulation, judgment,
order or decree of any Governmental Entity.
2.14
Corporate Power; Licenses; Consents.
2.14.1.
Conduct of Business. Except as described in the Registration Statement, the Disclosure Package and the Prospectus, the Company
has all requisite corporate power and authority, and has all necessary authorizations, approvals, orders, licenses, certificates, permits,
and, to the best of its knowledge, consents, qualifications and registrations of and from all governmental regulatory officials and bodies
that it needs as of the date hereof to conduct its business purpose as described in the Registration Statement, the Disclosure Package
and the Prospectus, except where such failure to have such consents, authorizations, approvals, registrations, orders, license, certificates,
qualifications, registrations and permits would not reasonably be expected to result in a Material Adverse Change.
2.14.2.
Transactions Contemplated Herein. The Company has all corporate power and authority to enter into this Agreement and the Pre-Funded
Warrants and to carry out the provisions and conditions hereof, and all consents, authorizations, approvals and orders, and, to the knowledge
of the Company, all licenses, certificates, qualifications, registrations and permits required in connection therewith have been obtained.
No consent, authorization or order of, and no filing with, any court, government agency or other body is required for the valid issuance,
sale and delivery of the Public Securities and the consummation of the transactions and agreements contemplated by this Agreement and
the Pre-Funded Warrants and as contemplated by the Registration Statement, the Disclosure Package and the Prospectus, except with respect
to applicable federal and state securities laws and the rules and regulations of the Exchange and the Financial Industry Regulatory Authority,
Inc. (“FINRA”).
2.15
D&O Questionnaires. To the Company’s knowledge, all information contained in the questionnaires (the “Questionnaires”)
completed by each of the Company’s directors and officers immediately prior to the Offering (the “Insiders”)
as supplemented by all information concerning the Company’s directors, officers and principal stockholders as described in the
Registration Statement, the Disclosure Package and the Prospectus, as well as in the Lock-Up Agreement (as defined in Section 2.25 below),
provided to the Underwriters, is true and correct in all material respects and the Company has not become aware of any information which
would cause the information disclosed in the Questionnaires to become materially inaccurate and incorrect.
2.16
Litigation; Governmental Proceedings. There is no action, suit, proceeding, inquiry, arbitration, investigation, litigation or
governmental proceeding pending or, to the Company’s knowledge, threatened against, or involving the Company, or, to the Company’s
knowledge, any executive officer or director which has not been disclosed in the Registration Statement, the Disclosure Package and the
Prospectus or in connection with the Company’s listing application for the listing of the Public Securities on the Exchange and
which is required to be disclosed.
2.17
Good Standing. The Company has been duly incorporated and is validly existing as a corporation and is in good standing under the
laws of the State of Delaware as of the date hereof, and is duly qualified to do business and is in good standing in each other jurisdiction
in which its ownership or lease of property or the conduct of business requires such qualification, except where the failure to be so
qualified or in good standing, singularly or in the aggregate, would not have or reasonably be expected to result in a Material Adverse
Change.
2.18
Insurance. The Company carries or is entitled to the benefits of insurance, with reputable insurers, in such amounts and covering
such risks which the Company believes are adequate, including, but not limited to, directors and officers insurance coverage at least
equal to $5,000,000 and all such insurance is in full force and effect. The Company has no reason to believe that it will not be able
(i) to renew its existing insurance coverage as and when such policies expire or (ii) to obtain comparable coverage from similar institutions
as may be necessary or appropriate to conduct its business as now conducted and at a cost that would not result in a Material Adverse
Change.
2.19
Transactions Affecting Disclosure to FINRA.
2.19.1.
Finder’s Fees. Except as described in the Registration Statement, the Disclosure Package and the Prospectus, there are no
claims, payments, arrangements, agreements or understandings relating to the payment of a finder’s, consulting or origination fee
by the Company or any Insider with respect to the sale of the Public Securities hereunder or any other arrangements, agreements or understandings
of the Company or, to the Company’s knowledge, any of its stockholders that may affect the Underwriters’ compensation, as
determined by FINRA.
2.19.2.
Payments Within Twelve (12) Months. Except as described in the Registration Statement, the Disclosure Package and the Prospectus,
the Company has not made any direct or indirect payments (in cash, securities or otherwise) to: (i) any person, as a finder’s
fee, consulting fee or otherwise, in consideration of such person raising capital for the Company or introducing to the Company persons
who raised or provided capital to the Company; (ii) any FINRA member; or (iii) any person or entity that has any direct or indirect
affiliation or association with any FINRA member, within the twelve (12) months prior to the date of this Agreement, other than the payment
to the Underwriters as provided hereunder in connection with the Offering.
2.19.3.
Use of Proceeds. None of the net proceeds of the Offering will be paid by the Company to any participating FINRA member or its
affiliates, except as specifically authorized herein.
2.19.4.
FINRA Affiliation. There is no (i) officer or director of the Company, (ii) beneficial owner of 5% or more of any class of the
Company’s securities or (iii) beneficial owner of the Company’s unregistered equity securities which were acquired during
the 180-day period immediately preceding the filing of the Registration Statement that is an affiliate or associated person of a FINRA
member participating in the Offering (as determined in accordance with the rules and regulations of FINRA). Except as disclosed in the
Registration Statement, the Disclosure Package and the Prospectus, the Company (i) does not have any material lending or other relationship
with any bank or lending affiliate of any Underwriter and (ii) does not intend to use any of the proceeds from the sale of the Public
Securities to repay any outstanding debt owed to any affiliate of any Underwriter.
2.19.5.
Information. All information provided by the Company in its, and to the Company’s knowledge, all information provided by
the Company’s officers and directors in their FINRA questionnaire to Representative Counsel specifically for use by Representative
Counsel in connection with its Public Offering System filings (and related disclosure) with FINRA is true, correct and complete in all
material respects.
2.20
Foreign Corrupt Practices Act. None of the Company nor, to the Company’s knowledge, any director, officer, agent, employee
or affiliate of the Company or any other person acting on behalf of the Company, has, directly or indirectly, (i) given or agreed to
give any money, gift or similar benefit (other than legal price concessions to customers in the ordinary course of business) to any customer,
supplier, employee or agent of a customer or supplier, or official or employee of any governmental agency or instrumentality of any government
(domestic or foreign) or any political party or candidate for office (domestic or foreign) or other person who was, is, or may be in
a position to help or hinder the business of the Company (or assist it in connection with any actual or proposed transaction) that (a)
might subject the Company to any damage or penalty in any civil, criminal or governmental litigation or proceeding, (b) if not given
in the past, might have had a Material Adverse Change; (c) if not continued in the future, might adversely affect the assets, business,
operations or prospects of the Company; or (d) violated or is in violation of any provision of the Foreign Corrupt Practices Act (the
“FCPA”) or any applicable non-U.S. anti-bribery statute or regulation; (ii) made any bribe, rebate, payoff, influence payment,
kickback or other unlawful payment; or (iii) received notice of any investigation, proceeding or inquiry by any Governmental Entity regarding
any of the matters in clauses (i) or (ii) above; and the Company has conducted its business in compliance with the FCPA in all material
respects, and has instituted and maintains policies and procedures designed to ensure, and which are reasonably expected to ensure, that
the Company will continue to comply in all material respects with the FCPA. The Company has taken reasonable steps to ensure that its
accounting controls and procedures are sufficient to cause the Company to comply in all material respects with the FCPA.
2.21
Compliance with OFAC. None of the Company nor, to the Company’s knowledge, any director, officer, agent, employee or affiliate
of the Company or any other person acting on behalf of the Company, is currently subject to any U.S. sanctions administered by the Office
of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”), and the Company will not, directly or indirectly,
use the proceeds of the Offering hereunder, or lend, contribute or otherwise make available such proceeds to any future subsidiary, joint
venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions
administered by OFAC.
2.22
Forward-Looking Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section
21E of the Exchange Act) contained in either the Registration Statement, Disclosure Package or Prospectus has been made or reaffirmed
without a reasonable basis or has been disclosed other than in good faith.
2.23
Money Laundering Laws. The operations of the Company are and have been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering
statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued,
administered or enforced by any Governmental Entity (collectively, the “Money Laundering Laws”); and no action, suit
or proceeding by or before any Governmental Entity involving the Company with respect to the Money Laundering Laws is pending or, to
the best knowledge of the Company, threatened.
2.24
Officers’ Certificate. Any certificate signed by any duly authorized officer of the Company and delivered to you or to Representative
Counsel shall be deemed a representation and warranty by the Company to the Underwriters as to the matters covered thereby.
2.25
Lock-Up Agreements. Schedule 3 hereto contains a complete and accurate list of the Company’s executive officers and directors
who will be subject to the Lock-Up Agreement (as defined below) (collectively, the “Lock-Up Parties”). The Company
has caused each of the Lock-Up Parties to deliver to the Representative an executed Lock-Up Agreement, in the form attached hereto as
Exhibit B (the “Lock-Up Agreement”), prior to the execution of this Agreement.
2.26
[Reserved].
2.27
Related Party Transactions. There are no business relationships or related party transactions involving the Company or any other
person required to be described in the Registration Statement, the Disclosure Package and the Prospectus that have not been described
as required.
2.28
No Relationships with Customers and Suppliers. No relationship, direct or indirect, exists between or among the Company on the
one hand, and the directors, officers, 5% or greater stockholders, customers or suppliers of the Company or any of the Company’s
affiliates on the other hand, which is required to be described in the Disclosure Package and the Prospectus or a document incorporated
by reference therein and which is not so described.
2.29
No Unconsolidated Entities. There are no transactions, arrangements or other relationships between and/or among the Company, any
of its affiliates (as such term is defined in Rule 405 of the Securities Act) and any unconsolidated entity, including, but not limited
to, any structured finance, special purpose or limited purpose entity that could reasonably be expected to materially affect the Company’s
liquidity or the availability of or requirements for its capital resources required to be described in the Disclosure Package and the
Prospectus or a document incorporated by reference therein which have not been described as required
2.30
Board of Directors. The Board of Directors of the Company is comprised of the persons disclosed in the Registration Statement,
the Disclosure Package and the Prospectus The qualifications of the persons serving as board members and the overall composition of the
board comply with the Exchange Act, the Exchange Act Regulations, the Sarbanes-Oxley Act of 2002 and the rules promulgated thereunder
(the “Sarbanes-Oxley Act”) applicable to the Company and the listing rules of the Exchange. At least one member of
the Audit Committee of the Board of Directors of the Company qualifies as an “audit committee financial expert,” as such
term is defined under Regulation S-K and the listing rules of the Exchange. In addition, at least a majority of the persons serving on
the Board of Directors qualify as “independent,” as defined under the listing rules of the Exchange.
2.31
Sarbanes-Oxley Compliance.
2.31.1.
Disclosure Controls. The Company has developed and currently maintains disclosure controls and procedures that will comply with
Rule 13a-15 or 15d-15 under the Exchange Act Regulations and such controls and procedures are effective to ensure that all material information
concerning the Company will be made known on a timely basis to the individuals responsible for the preparation of the Company’s
Exchange Act filings and other public disclosure documents.
2.31.2.
Compliance. The Company is, or at the Applicable Time and on the Closing Date will be, in material compliance with the provisions
of the Sarbanes-Oxley Act applicable to it, and has implemented or will implement such programs and taken reasonable steps to ensure
the Company’s future compliance (not later than the relevant statutory and regulatory deadlines therefor) with all of the material
provisions of the Sarbanes-Oxley Act.
2.31.3.
Accounting Controls. The Company maintains systems of “internal control over financial reporting” (as defined under
Rules 13a-15 and 15d-15 under the Exchange Act Regulations) that comply with the requirements of the Exchange Act and have been designed
by, or under the supervision of, their respective principal executive and principal financial officers, or persons performing similar
functions, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements
for external purposes in accordance with GAAP, including, but not limited to, internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions
are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to
any differences. Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, the Company is not aware
of any material weaknesses in its internal controls. The Company’s auditors and the Audit Committee of the Board of Directors of
the Company have been advised of: (i) all significant deficiencies and material weaknesses in the design or operation of internal controls
over financial reporting which are known to the Company’s management and that have adversely affected or are reasonably likely
to adversely affect the Company’s ability to record, process, summarize and report financial information; and (ii) any fraud known
to the Company’s management, whether or not material, that involves management or other employees who have a significant role in
the Company’s internal controls over financial reporting. Since the date of the latest audited financial statements included in
the Disclosure Package, there has been no change in the Company’s internal control over financial reporting that has materially
affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.
2.32
No Investment Company Status. The Company is not and, after giving effect to the Offering and the application of the proceeds
thereof as described in the Registration Statement, the Disclosure Package and the Prospectus, will not be, required to register as an
“investment company,” as defined in the Investment Company Act of 1940, as amended.
2.33
No Labor Disputes. No labor dispute with the employees of the Company exists or, to the knowledge of the Company, is imminent,
that is required to be disclosed in the Registration Statement, the Disclosure Package and the Prospectus or that could reasonably be
expected to have or result in a Material Adverse Change.
2.34
Intellectual Property Rights. The Company owns or possesses or has valid rights to use all patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses, inventions, trade secrets and
similar rights (“Intellectual Property Rights”) necessary for the conduct of the business of the Company as currently
carried on and as described in the Registration Statement, the Disclosure Package and the Prospectus. To the knowledge of the Company,
no action or use by the Company necessary for the conduct of its business as currently carried on and as described in the Registration
Statement and the Prospectus will involve or give rise to any infringement of, or license or similar fees (other than license or similar
fees described or contemplated in the Registration Statement, the Disclosure Package and the Prospectus) for, any Intellectual Property
Rights of others. The Company has not received any notice alleging any such infringement of, license or similar fees for, or conflict
with any asserted Intellectual Property Rights of others. Except as would not reasonably be expected to result, individually or in the
aggregate, in a Material Adverse Change (A) to the knowledge of the Company, there is no infringement, misappropriation or violation
by third parties of any of the Intellectual Property Rights owned by the Company; (B) there is no pending or, to the knowledge of the
Company, threatened action, suit, proceeding or claim by others challenging the rights of the Company in or to any such Intellectual
Property Rights, and the Company is unaware of any facts which would form a reasonable basis for any such claim, that would, individually
or in the aggregate, together with any other claims in this Section 2.34, reasonably be expected to result in a Material Adverse Change;
(C) the Intellectual Property Rights owned by the Company and, to the knowledge of the Company, the Intellectual Property Rights licensed
to the Company have not been adjudged by a court of competent jurisdiction invalid or unenforceable, in whole or in part, and there is
no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others challenging the validity or scope
of any such Intellectual Property Rights, and the Company is unaware of any facts which would form a reasonable basis for any such claim
that would, individually or in the aggregate, together with any other claims in this Section 2.34, reasonably be expected to result in
a Material Adverse Change; (D) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim
by others that the Company infringes, misappropriates or otherwise violates any Intellectual Property Rights or other proprietary rights
of others, the Company has not received any written notice of such claim and the Company is unaware of any other facts which would form
a reasonable basis for any such claim that would, individually or in the aggregate, together with any other claims in this Section 2.34,
reasonably be expected to result in a Material Adverse Change; and (E) to the Company’s knowledge, no employee of the Company is
in or has ever been in violation in any material respect of any term of any employment contract, patent disclosure agreement, invention
assignment agreement, non-competition agreement, non-solicitation agreement, nondisclosure agreement or any restrictive covenant to or
with a former employer where the basis of such violation relates to such employee’s employment with the Company, or actions undertaken
by the employee while employed with the Company and could reasonably be expected to result, individually or in the aggregate, in a Material
Adverse Change. To the Company’s knowledge, all material technical information developed by and belonging to the Company which
has not been patented or disclosed in a patent application has been kept confidential. The Company is not a party to or bound by any
options, licenses or agreements with respect to the Intellectual Property Rights of any other person or entity that are required to be
set forth in the Registration Statement, the Disclosure Package and the Prospectus and are not described therein. The Registration Statement,
the Disclosure Package and the Prospectus contain in all material respects the same description of the matters set forth in the preceding
sentence. None of the technology employed by the Company has been obtained or is being used by the Company in violation of any contractual
obligation binding on the Company or, to the Company’s knowledge, any of its officers, directors or employees, or otherwise in
violation of the rights of any persons.
To
the Company’s knowledge, all licenses for the use of the Intellectual Property described in the Registration Statement, the Disclosure
Package and the Prospectus are in full force and effect in all material respects and are enforceable by the Company and, to the Company’s
knowledge, the other parties thereto, in accordance with their terms, except (x) as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting creditors’ rights generally, (y) as enforceability of any indemnification
or contribution provision may be limited under the federal and state securities laws, and (z) that the remedy of specific performance
and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought. None of such agreements or instruments has been assigned by the Company, and the Company
has no actual knowledge that any other party is in default thereunder and the Company has no actual knowledge that an event has occurred
that, with the lapse of time or the giving of notice, or both, would constitute a default thereunder.
2.35
Taxes. The Company has filed all returns (as hereinafter defined) required to be filed with taxing authorities prior to the date
hereof or has duly obtained extensions of time for the filing thereof. The Company has paid all taxes (as hereinafter defined) shown
as due on such returns that were filed and has paid all taxes imposed on or assessed against the Company. The provisions for taxes payable,
if any, shown on the financial statements filed with or as part of the Registration Statement are sufficient for all accrued and unpaid
taxes, whether or not disputed, and for all periods to and including the dates of such consolidated financial statements. Except as disclosed
in writing to the Underwriters, (i) no issues have been raised (and are currently pending) by any taxing authority in connection with
any of the returns or taxes asserted as due from the Company, and (ii) no waivers of statutes of limitation with respect to the returns
or collection of taxes have been given by or requested from the Company. The term “taxes” means all federal, state, local,
foreign and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service,
service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties
or other taxes, fees, assessments or charges of any kind whatever, together with any interest and any penalties, additions to tax or
additional amounts with respect thereto. The term “returns” means all returns, declarations, reports, statements and other
documents required to be filed in respect to taxes.
2.36
ERISA Compliance. The Company and any “employee benefit plan” (as defined under the Employee Retirement Income Security
Act of 1974, as amended, and the regulations and published interpretations thereunder (collectively, “ERISA”)) established
or maintained by the Company or its “ERISA Affiliates” (as defined below) are in compliance in all material respects with
ERISA. “ERISA Affiliate” means, with respect to the Company, any member of any group of organizations described in Sections
414(b),(c),(m) or (o) of the Internal Revenue Code of 1986, as amended, and the regulations and published interpretations thereunder
(the “Code”) of which the Company is a member. No “reportable event” (as defined under ERISA) has occurred
or is reasonably expected to occur with respect to any “employee benefit plan” established or maintained by the Company or
any of its ERISA Affiliates. No “employee benefit plan” established or maintained by the Company or any of its ERISA Affiliates,
if such “employee benefit plan” were terminated, would have any “amount of unfunded benefit liabilities” (as
defined under ERISA). Neither the Company, nor any of its ERISA Affiliates has incurred or reasonably expects to incur any material liability
under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any “employee benefit plan” or (ii) Sections
412, 4971, 4975 or 4980B of the Code. Each “employee benefit plan” established or maintained by the Company, or any of its
ERISA Affiliates that is intended to be qualified under Section 401(a) of the Code is so qualified and, to the knowledge of the Company,
nothing has occurred, whether by action or failure to act, which would cause the loss of such qualification.
2.37
Compliance with Laws. The Company: (A) is and at all times has been in material compliance with all statutes, rules, regulations,
ordinances, judgments, orders and decrees of all Governmental Entities applicable to the Company’s business (“Applicable
Laws”), except as could not, individually or in the aggregate, reasonably be expected to result in or have a Material Adverse
Change; (B) has not received any warning letter, untitled letter or other correspondence or written notice from any other Governmental
Entity alleging or asserting noncompliance with any Applicable Laws or any licenses, consents, certificates, approvals, clearances, authorizations,
permits, orders and supplements or amendments thereto required by any such Applicable Laws (“Authorizations”); (C)
possesses all material Authorizations and such Authorizations are valid and in full force and effect and are not in material violation
of any term of any such Authorizations; (D) has not received written notice of any claim, action, suit, litigation, proceeding, hearing,
enforcement, investigation, inquiry, arbitration or other action from any Governmental Entity or third party alleging that any product
operation or activity is in violation of any Applicable Laws or Authorizations and has no knowledge that any such Governmental Entity
or third party is considering any such claim, litigation, arbitration, action, suit, proceeding, hearing, enforcement, investigation,
inquiry, arbitration or other action; (E) has not received written notice that any Governmental Entity has taken, is taking or intends
to take action to limit, suspend, modify or revoke any Authorizations and has no knowledge that any such Governmental Entity is considering
such action; (F) has filed, obtained, maintained or submitted all material reports, documents, forms, filings, notices, applications,
records, claims, submissions and supplements or amendments as required by any Applicable Laws or Authorizations and that all such reports,
documents, forms, notices, applications, records, claims, submissions and supplements or amendments were complete and correct in all
material respects on the date filed (or were corrected or supplemented by a subsequent submission); and (G) has not, either voluntarily
or involuntarily, initiated, conducted, or issued or caused to be initiated, conducted or issued, any recall, market withdrawal or replacement,
safety alert, post-sale warning, “dear doctor” letter, or other notice or action relating to the alleged lack of safety or
efficacy of any product or any alleged product defect or violation and, to the Company’s knowledge, no third party has initiated,
conducted or intends to initiate any such notice or action.
2.38
Ineligible Issuer. At the time of filing the Registration Statement and any post-effective amendment thereto, at the time
of effectiveness of the Registration Statement and any amendment thereto, at the earliest time thereafter that the Company or another
offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the Securities Act Regulations) of the Public Securities
and at the date hereof, the Company was not and is not an “ineligible issuer,” as defined in Rule 405, without taking account
of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an ineligible issuer.
2.39
Environmental Laws. The Company is in material compliance with all foreign, federal, state and local rules, laws and regulations
relating to the use, treatment, storage and disposal of hazardous or toxic substances or waste and protection of health and safety or
the environment which are applicable to their businesses (“Environmental Laws”), except where the failure to comply
would not, singularly or in the aggregate, result in a Material Adverse Change.
2.40
Real Property. Except as set forth in the Registration Statement, the Disclosure Package and the Prospectus, the Company has good
and marketable title in fee simple to, or has valid rights to lease or otherwise use, all items of real or personal property which are
material to the business of the Company, in each case free and clear of all liens, encumbrances, security interests, claims and defects
that do not, singly or in the aggregate, materially affect the value of such property and do not interfere with the use made and proposed
to be made of such property by the Company; and all of the leases and subleases material to the business of the Company and under which
the Company holds properties described in the Registration Statement, the Disclosure Package and the Prospectus, are in full force and
effect, and the Company has not received any notice of any material claim of any sort that has been asserted by anyone adverse to the
rights of the Company under any of the leases or subleases mentioned above, or affecting or questioning the rights of the Company to
the continued possession of the leased or subleased premises under any such lease or sublease.
2.41
Contracts Affecting Capital. There are no transactions, arrangements or other relationships between and/or among the Company,
any of its affiliates (as such term is defined in Rule 405 of the Securities Act Regulations) and any unconsolidated entity, including,
but not limited to, any structured finance, special purpose or limited purpose entity that could reasonably be expected to materially
affect the Company’s liquidity or the availability of or requirements for its capital resources required to be described or incorporated
by reference in the Registration Statement, the Disclosure Package and the Prospectus which have not been described or incorporated by
reference as required.
2.42
Loans to Directors or Officers. There are no outstanding loans, advances (except normal advances for business expenses in the
ordinary course of business) or guarantees or indebtedness by the Company to or for the benefit of any of the officers or directors of
the Company or any of their respective family members, except as disclosed in the Registration Statement, the Disclosure Package and
the Prospectus.
2.43
Ineligible Issuer. At the time of filing the Registration Statement and any post-effective amendment thereto, at the time of effectiveness
of the Registration Statement and any amendment thereto, at the earliest time thereafter that the Company or another offering participant
made a bona fide offer (within the meaning of Rule 164(h)(2) of the Securities Act Regulations) of the Public Securities and at the date
hereof, the Company was not and is not an “ineligible issuer,” as defined in Rule 405, without taking account of any determination
by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an ineligible issuer.
2.44
[Reserved].
2.45
Smaller Reporting Company. As of the time of filing of the Registration Statement, the Company was, and currently is, a
“smaller reporting company,” as defined in Rule 12b-2 of the Exchange Act Regulations.
2.46
Industry Data. The statistical and market-related data included in each of the Registration Statement, the Disclosure Package
and the Prospectus are based on or derived from sources that the Company reasonably and in good faith believes are reliable and accurate
or represent the Company’s good faith estimates that are made on the basis of data derived from such sources.
2.47
Margin Securities. The Company owns no “margin securities” as that term is defined in Regulation U of the Board of
Governors of the Federal Reserve System (the “Federal Reserve Board”), and none of the proceeds of Offering will be used,
directly or indirectly, for the purpose of purchasing or carrying any margin security, for the purpose of reducing or retiring any indebtedness
which was originally incurred to purchase or carry any margin security or for any other purpose which might cause any of the shares of
Common Stock to be considered a “purpose credit” within the meanings of Regulation T, U or X of the Federal Reserve Board.
2.48
Exchange Act Reports. The Company has filed in a timely manner all reports required to be filed pursuant to Sections 13(a), 13(e),
14 and 15(d) of the Exchange Act during the preceding 12 months (except to the extent that Section 15(d) requires reports to be filed
pursuant to Sections 13(d) and 13(g) of the Exchange Act, which shall be governed by the next clause of this sentence); and the Company
has filed in a timely manner all reports required to be filed pursuant to Sections 13(d) and 13(g) of the Exchange Act since January
1, 2021, except where the failure to timely file could not reasonably be expected, individually or in the aggregate, to have a Material
Adverse Change.
2.49
Minute Books. The minute books of the Company have been made available to the Underwriters and Representative Counsel, and such
books (i) contain a complete summary of all meetings and actions of the board of directors (including each board committee) and stockholders
of the Company (or analogous governing bodies and interest holders, as applicable) from January 2023 through the date of the latest meeting
and action, and (ii) accurately in all material respects reflect all transactions referred to in such minutes. There are no material
transactions, agreements, dispositions or other actions of the Company that are not properly approved and/or accurately and fairly recorded
in the minute books of the Company.
2.50
Integration. 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 the Offering
to be integrated with prior offerings by the Company for purposes of the Securities Act that would require the registration of any such
securities under the Securities Act.
2.51
No Stabilization. Neither the Company nor, to its knowledge, any of its employees, directors or stockholders (without the consent
of the Representative) has taken or shall take, directly or indirectly, any action designed to or that has constituted or that might
reasonably be expected to cause or result in, under Regulation M of the Exchange Act, or otherwise, stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of the Public Securities.
2.52
Confidentiality and Non-Competition. To the Company’s knowledge, no director, officer, key employee or consultant of the
Company is subject to any confidentiality, non-disclosure, non-competition agreement or non-solicitation agreement with any employer
or prior employer that could reasonably be expected to materially affect his ability to be and act in his respective capacity of the
Company or be expected to result in a Material Adverse Change.
2.53
Testing-the-Waters Communications. The Company has not (i) alone engaged in any Testing-the-Waters Communications, other than
Testing-the-Waters Communications with the written consent of the Representative and with entities that are qualified institutional buyers
within the meaning of Rule 144A under the Securities Act or institutions that are accredited investors within the meaning of Rule 501
under the Securities Act and (ii) authorized anyone other than the Representative to engage in Testing-the-Waters Communications. The
Company confirms that the Representative has been authorized to act on its behalf in undertaking Testing-the-Waters Communications. The
Company has not distributed any Written Testing-the-Waters Communications other than those listed on Schedule 2-C hereto. “Written
Testing-the-Waters Communication” means any Testing-the-Waters Communication that is a written communication within the meaning
of Rule 405 under the Securities Act.
2.54
[Reserved].
3.
Covenants of the Company. The Company covenants and agrees as follows:
3.1
Amendments to Registration Statement. The Company shall deliver to the Representative, prior to filing, any amendment or supplement
to the Registration Statement, Preliminary Prospectus, Disclosure Package or Prospectus proposed to be filed after the date hereof and
not file any such amendment or supplement to which the Representative shall reasonably object in writing.
3.2
Federal Securities Laws.
3.2.1.
Compliance. The Company, subject to Section 3.2.2, shall comply with the requirements of Rule 424(b) and Rule 430B of the Securities
Act Regulations, and will notify the Representative promptly, and confirm the notice in writing, (i) when any post-effective amendment
to the Registration Statement or any amendment or supplement to any Preliminary Prospectus, the Disclosure Package or the Prospectus
shall have been filed and when any post-effective amendment to the Registration Statement shall become effective; (ii) of the receipt
of any comments from the Commission; (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment
or supplement to any Preliminary Prospectus, the Disclosure Package or the Prospectus or for additional information; (iv) of the issuance
by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment or of
any order preventing or suspending the use of any Preliminary Prospectus, the Disclosure Package or the Prospectus, or of the suspension
of the qualification of the Public Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings
for any of such purposes or of any examination pursuant to Section 8(d) or 8(e) of the Securities Act concerning the Registration Statement;
and (v) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the Offering of
the Public Securities. The Company shall effect all filings required under Rule 424(b) of the Securities Act Regulations, in the manner
and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and shall take such steps as it deems necessary
to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission
and, in the event that it was not, it will promptly file such prospectus. The Company shall use its best efforts to prevent the issuance
of any stop order, prevention or suspension and, if any such order is issued, to obtain the lifting thereof at the earliest possible
moment.
3.2.2.
Continued Compliance. The Company shall comply with the Securities Act, the Securities Act Regulations, the Exchange Act and the
Exchange Act Regulations so as to permit the completion of the distribution of the Public Securities as contemplated in this Agreement
and in the Registration Statement, the Disclosure Package and the Prospectus. If at any time when a prospectus relating to the Public
Securities is (or, but for the exception afforded by Rule 172 of the Securities Act Regulations (“Rule 172”), would
be) required by the Securities Act to be delivered in connection with sales of the Public Securities, any event shall occur or condition
shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or for the Company, to (i) amend
the Registration Statement in order that the Registration Statement will not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) amend or supplement
the Disclosure Package or the Prospectus in order that the Disclosure Package or the Prospectus, as the case may be, will not include
any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading
in the light of the circumstances existing at the time it is delivered to a purchaser or (iii) amend the Registration Statement
or amend or supplement the Disclosure Package or the Prospectus, as the case may be, in order to comply with the requirements of the
Securities Act or the Securities Act Regulations, the Company will promptly (A) give the Representative notice of such event; (B) prepare
any amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement, the Disclosure
Package or the Prospectus comply with such requirements and, a reasonable amount of time prior to any proposed filing or use, furnish
the Representative with copies of any such amendment or supplement and (C) file with the Commission any such amendment or supplement;
provided, however, that the Company shall not file or use any such amendment or supplement to which the Representative or counsel for
the Underwriters shall reasonably object. The Company will furnish to the Underwriters such number of copies of such amendment or supplement
as the Underwriters may reasonably request. The Company has given the Representative notice of any filings made pursuant to the Exchange
Act or the Exchange Act Regulations within 48 hours prior to the Applicable Time. The Company shall give the Representative notice of
its intention to make any such filing from the Applicable Time until the later of the Closing Date and the exercise in full or expiration
of the Over-allotment Option specified in Section 1.2 hereof and will furnish the Representative with copies of the related document(s)
a reasonable amount of time prior to such proposed filing, as the case may be, and will not file or use any such document to which the
Representative or counsel for the Underwriters shall reasonably object.
3.2.3.
Exchange Act Registration. For a period of three (3) years after the date of this Agreement, the Company shall use its best efforts
to maintain the registration of the shares of Common Stock under the Exchange Act. The Company shall not deregister the shares of Common
Stock under the Exchange Act without the prior written consent of the Representative.
3.2.4.
Free Writing Prospectuses. The Company agrees that, unless it obtains the prior written consent of the Representative, it shall
not make any offer relating to the Public Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise
constitute a “free writing prospectus,” or a portion thereof, required to be filed by the Company with the Commission or
retained by the Company under Rule 433; provided, however, that the Representative shall be deemed to have consented to each Issuer General
Use Free Writing Prospectus hereto and any “road show that is a written communication” within the meaning of Rule 433(d)(8)(i)
that has been reviewed by the Representative. The Company represents that it has treated or agrees that it will treat each such free
writing prospectus consented to, or deemed consented to, by the Underwriters as an “issuer free writing prospectus,” as defined
in Rule 433, and that it has complied and will comply with the applicable requirements of Rule 433 with respect thereto, including timely
filing with the Commission where required, legending and record keeping. If at any time following issuance of an Issuer Free Writing
Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would
conflict with the information contained in the Registration Statement or included or would include an untrue statement of a material
fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
existing at that subsequent time, not misleading, the Company will promptly notify the Underwriters and will promptly amend or supplement,
at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
3.2.5.
Testing-the-Waters Communications. If at any time following the distribution of any Written Testing-the-Waters Communication there
occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include
an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances existing at that subsequent time, not misleading, the Company shall promptly notify the Representative
and shall promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such
untrue statement or omission.
3.3
Delivery to the Underwriters of Registration Statements. The Company has delivered or made available or shall deliver or make
available to the Representative and counsel for the Representative, without charge, signed copies of the Registration Statement as originally
filed and each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated
or deemed to be incorporated by reference therein) and signed copies of all consents and certificates of experts, and will also deliver
to the Underwriters, without charge, a conformed copy of the Registration Statement as originally filed and each amendment thereto (without
exhibits) for each of the Underwriters. The copies of the Registration Statement and each amendment thereto furnished to the Underwriters
will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
3.4
Delivery to the Underwriters of Prospectuses. The Company has delivered or made available or will deliver or make available to
each Underwriter, without charge, as many copies of each Preliminary Prospectus as such Underwriter reasonably requested, and the Company
hereby consents to the use of such copies for purposes permitted by the Securities Act. The Company will furnish to each Underwriter,
without charge, during the period when a prospectus relating to the Public Securities is (or, but for the exception afforded by Rule
172, would be) required to be delivered under the Securities Act, such number of copies of the Prospectus (as amended or supplemented)
as such Underwriter may reasonably request. The Prospectus and any amendments or supplements thereto furnished to the Underwriters will
be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted
by Regulation S-T.
3.5
Effectiveness and Events Requiring Notice to the Representative. The Company shall use its best efforts to cause the Registration
Statement to remain effective until its expiration, and shall notify the Representative immediately and confirm the notice in writing:
(i) of the effectiveness of the Registration Statement and any amendment thereto; (ii) of the issuance by the Commission of
any stop order or of the initiation, or the threatening, of any proceeding for that purpose; (iii) of the issuance by any state
securities commission of any proceedings for the suspension of the qualification of the Public Securities for offering or sale in any
jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose; (iv) of the mailing and delivery to the
Commission for filing of any amendment or supplement to the Registration Statement or Prospectus; (v) of the receipt of any comments
or request for any additional information from the Commission; and (vi) of the happening of any event during the period described
in this Section 3.5 that, in the judgment of the Company, makes any statement of a material fact made in the Registration Statement,
the Disclosure Package or the Prospectus untrue or that requires the making of any changes in (a) the Registration Statement in order
to make the statements therein not misleading, or (b) in the Disclosure Package or the Prospectus in order to make the statements therein,
in light of the circumstances under which they were made, not misleading. If the Commission or any state securities commission shall
enter a stop order or suspend such qualification at any time, the Company shall make every reasonable effort to obtain promptly the lifting
of such order.
3.6
Review of Financial Statements. For a period of five (5) years after the date of this Agreement, the Company, at its expense,
shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial
statements for each of the three fiscal quarters immediately preceding the announcement of any quarterly financial information.
3.7
Listing. The Company shall use its best efforts to maintain the listing of the shares of Common Stock (including the Public Securities)
on the Exchange for at least three (3) years from the date of this Agreement.
3.8
Financial Public Relations Firm. The Company has retained a financial public relations firm reasonably acceptable to the Representative
and the Company, which firm shall be experienced in assisting issuers in public offerings of securities and in their relations with their
security holders, and shall retain such firm or another firm reasonably acceptable to the Representative for a period of not less than
two (2) years after the date hereof.
3.9
Reports to the Representative.
3.9.1.
Periodic Reports, etc. For a period of three (3) years after the date of this Agreement, the Company shall furnish or make available
to the Representative copies of such financial statements and other periodic and special reports as the Company from time to time furnishes
generally to holders of any class of its securities and also promptly furnish to the Representative: (i) a copy of each periodic report
the Company shall be required to file with the Commission under the Exchange Act and the Exchange Act Regulations; (ii) a copy of every
press release and every news item and article with respect to the Company or its affairs which was released by the Company; (iii) a copy
of each Form 8-K prepared and filed by the Company; (iv) five copies of each registration statement filed by the Company under the Securities
Act; (v) a copy of each report or other communication furnished to stockholders; and (vi) such additional documents and information with
respect to the Company and the affairs of any future subsidiaries of the Company as the Representative may from time to time reasonably
request; provided, however, the Representative shall sign, if requested by the Company, a Regulation FD compliant confidentiality agreement
which is reasonably acceptable to the Representative and Representative Counsel in connection with the Representative’s receipt
of such information. Documents filed with the Commission pursuant to its EDGAR system shall be deemed to have been delivered to the Representative
pursuant to this Section 3.9.1.
3.9.2.
Transfer Agent; Transfer Sheets. For a period of three (3) years after the date of this Agreement, the Company shall retain a
transfer agent, and registrar acceptable to the Representative (the “Transfer Agent”) and shall furnish to the Representative
at the Company’s sole cost and expense such transfer sheets of the Company’s securities as the Representative may reasonably
request, including the daily and monthly consolidated transfer sheets of the Transfer Agent and DTC. VStock Transfer LLC is acceptable
to the Representative to act as Transfer Agent for the shares of Common Stock.
3.9.3.
Trading Reports. During such time as the Public Securities are listed on the Exchange, the Company shall provide to the Representative,
at the Company’s expense, such reports published by the Exchange relating to price trading of the Public Securities and Underlying
Securities, as the Representative shall reasonably request.
3.10
Payment of Expenses. The Company hereby agrees to pay on each of the Closing Date and the Option Closing Date, if any, to the
extent not paid at the Closing Date, all expenses incident to the performance of the obligations of the Company under this Agreement,
including, but not limited to: (a) all filing fees and communication expenses relating to the registration of the Public Securities to
be issued and sold in the Offering with the Commission; (b) all filing fees associated with the review of the Offering by FINRA; (c)
all fees and expenses relating to the listing of the Common Stock (including, without limitation, the Firm Shares and the Option Shares)
on the Exchange and such other stock exchanges as the Company and the Representative together determine, including any fees charged by
The Depository Trust for new securities; (d) all fees, expenses and disbursements relating to background checks of the Company’s
officers and directors; (e) all fees, expenses and disbursements relating to the registration or qualification of the Public Securities
under the “blue sky” securities laws of such states and other jurisdictions as the Representative may reasonably designate;
(f) all fees, expenses and disbursements relating to the registration, qualification or exemption of the Public Securities under
the securities laws of such foreign jurisdictions as the Representative may reasonably designate; (g) the costs of all mailing and printing
of the underwriting documents (including, without limitation, the Underwriting Agreement, any Blue Sky Surveys and, if appropriate, any
Agreement Among Underwriters, Selected Dealers’ Agreement, Underwriters’ Questionnaire and Power of Attorney), Registration
Statements, Prospectuses and all amendments, supplements and exhibits thereto and as many preliminary and final Prospectuses as the Representative
may reasonably deem necessary; (h) the costs and expenses of a public relations firm; (i) the costs of preparing, printing and delivering
certificates representing the Public Securities; (j) fees and expenses of the transfer agent for the shares of Common Stock; (k) stock
transfer and/or stamp taxes, if any, payable upon the transfer of securities from the Company to the Underwriters; and (t) all actual
accountable fees and expenses of the Underwriters in connection with the Offering up to $75,000. The Representative may deduct from the
net proceeds of the Offering payable to the Company on the Closing Date, or the Option Closing Date, if any, the expenses set forth herein
(less any amounts previously advanced against such actual reimbursable expense) to be paid by the Company to the Underwriters; provided
however, that in the event that the Offering is terminated, the Company agrees to reimburse the Underwriters pursuant to Section 8.3
hereof.
3.11
Application of Net Proceeds. The Company shall apply the net proceeds from the Offering received by it in a manner consistent
with the application thereof described under the caption “Use of Proceeds” in the Registration Statement, the Disclosure
Package and the Prospectus.
3.12
Delivery of Earnings Statements to Security Holders. The Company shall make generally available to its security holders as soon
as practicable, but not later than the first day of the fifteenth (15th) full calendar month following the date of this Agreement,
an earnings statement (which need not be certified by independent registered public accounting firm unless required by the Securities
Act or the Securities Act Regulations, but which shall satisfy the provisions of Rule 158(a) under Section 11(a) of the Securities Act)
covering a period of at least twelve (12) consecutive months beginning after the date of this Agreement.
3.13
Stabilization. Neither the Company nor, to its knowledge, any of its employees, directors or stockholders (without the consent
of the Representative) has taken or shall take directly or indirectly, any action designed to or that has constituted or that might reasonably
be expected to cause or result in, under Regulation M of the Exchange Act, or otherwise, stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the Public Securities.
3.14
Internal Controls. The Company shall maintain a system of internal accounting controls sufficient to provide reasonable assurances
that: (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions
are recorded as necessary in order to permit preparation of financial statements in accordance with GAAP and to maintain accountability
for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and
(iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
3.15
Accountants. As of the date of this Agreement, the Company shall continue to retain a nationally recognized independent registered
public accounting firm for a period of at least three (3) years after the date of this Agreement. The Representative acknowledges that
the Auditor is acceptable to the Representative.
3.16
FINRA. The Company shall advise the Representative (who shall make an appropriate filing with FINRA) if it is or becomes aware
that (i) any officer or director of the Company, (ii) any beneficial owner of 5% or more of any class of the Company’s securities
or (iii) any beneficial owner of the Company’s unregistered equity securities which were acquired during the 180 days immediately
preceding the filing of the Registration Statement is or becomes an affiliate or associated person of a FINRA member participating in
the Offering (as determined in accordance with the rules and regulations of FINRA).
3.17
No Fiduciary Duties. The Company acknowledges and agrees that the Underwriters’ responsibility to the Company is solely
contractual in nature and that none of the Underwriters or their affiliates or any selling agent shall be deemed to be acting in a fiduciary
capacity, or otherwise owes any fiduciary duty to the Company or any of its affiliates in connection with the Offering and the other
transactions contemplated by this Agreement.
3.18
Restriction on Continuous Offerings. Notwithstanding the restrictions contained in Section 3.18, the Company, on behalf of itself
and any successor entity, agrees that, without the prior written consent of the Representative, it will not, for a period of two (2)
months after the date of this Agreement, directly or indirectly in any “at-the-market” or continuous equity transaction,
offer to sell, sell, contract to sell, grant any option to sell or otherwise dispose of shares of capital stock of the Company or any
securities convertible into or exercisable or exchangeable for shares of capital stock of the Company.
3.19
Company Lock-Up Agreements. The Company, on behalf of itself and any successor entity, agrees that, without the prior written
consent of the Representative, it will not for a period of two (2) months after the date of this Agreement (the “Lock-Up Period”),
(i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of capital stock
of the Company or any securities convertible into or exercisable or exchangeable for shares of capital stock of the Company; (ii) file
or cause to be filed any registration statement with the Commission relating to the offering of any shares of capital stock of the Company
or any securities convertible into or exercisable or exchangeable for shares of capital stock of the Company; or (iii) complete any offering
of debt securities of the Company, other than entering into a line of credit with a traditional bank or (iv) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of capital stock of the Company,
whether any such transaction described in clause (i), (ii), (iii) or (iv) above is to be settled by delivery of shares of capital stock
of the Company or such other securities, in cash or otherwise.
The
restrictions contained in this Section 3.19 shall not apply to (i) the shares of Common Stock to be sold hereunder, (ii) the issuance
by the Company of Underlying Shares upon exercise of the Pre-funded Warrants, (iii) the issuance by the Company of shares of Common Stock
upon the exercise of a stock option or warrant or the conversion of a security outstanding on the date hereof, which is disclosed in
the Registration Statement, Disclosure Package and Prospectus, provided that such options, warrants, and securities have not been amended
since the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion
price of such securities or to extend the term of such securities, (iv) the issuance by the Company of stock options, shares of capital
stock of the Company or other awards under any equity compensation plan of the Company, provided that in each of (iii) and (iv) above,
the underlying shares shall be restricted from sale during the entire Lock-Up Period.
3.20
Release of D&O Lock-up Period. If the Representative, in its sole discretion, agrees to release or waive the restrictions
set forth in the Lock-Up Agreements described in Section 2.25 hereof for an officer or director of the Company and provide the Company
with notice of the impending release or waiver at least three (3) Business Days before the effective date of the release or waiver, the
Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit C hereto
through a major news service at least two (2) Business Days before the effective date of the release or waiver.
3.21
Blue Sky Qualifications. The Company shall use its best efforts, in cooperation with the Underwriters, if necessary, to qualify
the Public Securities for offering and sale under the applicable securities laws of such states and other jurisdictions (domestic or
foreign) as the Representative may designate and to maintain such qualifications in effect so long as required to complete the distribution
of the Public Securities; provided, however, that the Company shall not be obligated to file any general consent to service of process
or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
3.22
Reporting Requirements. The Company, during the period when a prospectus relating to the Public Securities is (or, but for the
exception afforded by Rule 172, would be) required to be delivered under the Securities Act, will file all documents required to be filed
with the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act and Exchange Act Regulations. Additionally,
the Company shall report the use of proceeds from the issuance of the Public Securities as may be required under Rule 463 under the Securities
Act Regulations.
3.23
Press Release. Prior to the Closing Date and any Option Closing Date, the Company shall not issue any press release or other communication
directly or indirectly or hold any press conference with respect to the Company, its condition, financial or otherwise, or earnings,
business affairs or business prospects (except for routine oral marketing communications in the ordinary course of business and consistent
with the past practices of the Company and of which the Representative is notified), without the prior written consent of the Representative,
which consent shall not be unreasonably withheld, unless in the judgment of the Company and its counsel, and after notification to the
representative, such press release or communication is required by law.
3.24
[Reserved].
3.25
[Reserved].
3.26
Reservation of Common Stock. As of the date hereof, the Company has irrevocably reserved, and the Company shall continue to reserve
and keep available at all times, free of pre-emptive rights, a sufficient number of shares of Common Stock for the purpose of enabling
the Company to issue the Underlying Shares.
4.
Conditions of Underwriters’ Obligations. The obligations of the Underwriters to purchase and pay for the Public Securities,
as provided herein, shall be subject to (i) the continuing accuracy of the representations and warranties of the Company as of the date
hereof and as of each of the Closing Date and the Option Closing Date, if any; (ii) the accuracy of the statements of officers of the
Company made pursuant to the provisions hereof; (iii) the performance by the Company of its obligations hereunder; and (iv) the following
conditions:
4.1
Regulatory Matters.
4.1.1.
Commission Actions; Required Filings. At each of the Closing Date and any Option Closing Date, no stop order suspending the effectiveness
of the Registration Statement or any post-effective amendment thereto has been issued under the Securities Act, no order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus has been issued and no proceedings for any of those purposes have
been instituted or are pending or, to the Company’s knowledge, contemplated by the Commission. The Company has complied with each
request (if any) from the Commission for additional information. A Prospectus containing the Rule 430B Information shall have been filed
with the Commission in the manner and within the time frame required by Rule 424(b) under the Securities Act Regulations (without reliance
on Rule 424(b)(8)) or a post-effective amendment providing such information shall have been filed with, and declared effective by, the
Commission in accordance with the requirements of Rule 430B under the Securities Act regulations.
4.1.2.
FINRA Clearance. On or before the date of this Agreement, the Representative shall have received clearance from FINRA as to the
amount of compensation allowable or payable to the Underwriters as described in the Registration Statement.
4.1.3.
Exchange Clearance The Company shall have submitted the Listing of Additional Shares Notification Form to the Exchange with respect
to the Offering of the Public Securities and the Underlying Shares and the Exchange shall not have raised any objection to the submission
prior the Closing Date or each Option Closing Date, as applicable
4.2
Company Counsel Matters.
4.2.1.
Closing Date Opinion of Counsel. On the Closing Date, the Representative shall have received the favorable opinion of Loeb &
Loeb LLP, counsel to the Company, and a written statement providing certain “10b-5” negative assurances, dated the Closing
Date and addressed to the Representative, in form and substance reasonably satisfactory to the Representative.
4.2.2.
Option Closing Date Opinions of Counsel. On the Option Closing Date, if any, the Representative shall have received the favorable
opinions of each counsel listed in Section 4.2.1, dated the Option Closing Date, addressed to the Representative and in form and substance
reasonably satisfactory to the Representative, confirming as of the Option Closing Date, the statements made by such counsels in their
respective opinions delivered on the Closing Date.
4.2.3.
Reliance. In rendering such opinions, such counsel may rely: (i) as to matters involving the application of laws other than
the laws of the United States and jurisdictions in which they are admitted, to the extent such counsel deems proper and to the extent
specified in such opinion, if at all, upon an opinion or opinions (in form and substance reasonably satisfactory to the Representative)
of other counsel reasonably acceptable to the Representative, familiar with the applicable laws; and (ii) as to matters of fact,
to the extent they deem proper, on certificates or other written statements of officers of the Company and officers of departments of
various jurisdictions having custody of documents respecting the corporate existence or good standing of the Company.
4.3
Comfort Letters.
4.3.1.
Cold Comfort Letter. At the time this Agreement is executed you shall have received a cold comfort letter containing statements
and information of the type customarily included in accountants’ comfort letters with respect to the financial statements and certain
financial information contained or incorporated by reference or deemed incorporated by reference in the Registration Statement, the Disclosure
Package and the Prospectus, addressed to the Representative and in form and substance satisfactory in all respects to you and to the
Auditor, dated as of the date of this Agreement.
4.3.2.
Bring-down Comfort Letter. At each of the Closing Date and the Option Closing Date, if any, the Representative shall have received
from the Auditor a letter, dated as of the Closing Date or the Option Closing Date, as applicable, to the effect that the Auditor reaffirms
the statements made in their letter furnished pursuant to Section 4.3.1, except that the specified date referred to shall be a date not
more than three (3) business days prior to the Closing Date or the Option Closing Date, as applicable.
4.4
Officers’ Certificates.
4.4.1.
Officers’ Certificate. The Company shall have furnished to the Representative a certificate, dated the Closing Date and
any Option Closing Date (if such date is other than the Closing Date), of its Chief Executive Officer and its Chief Financial Officer
stating that (i) such officers have carefully examined the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus
and the Prospectus and, in their opinion, the Registration Statement and each amendment thereto, as of the Applicable Time and as of
the Closing Date (or any Option Closing Date if such date is other than the Closing Date) did not include any untrue statement of a material
fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading,
and the Disclosure Package, as of the Applicable Time and as of the Closing Date (or any Option Closing Date if such date is other than
the Closing Date), any Issuer Free Writing Prospectus as of its date and as of the Closing Date (or any Option Closing Date if such date
is other than the Closing Date), and the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as
of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date
of the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration
Statement, the Disclosure Package or the Prospectus, (iii) to the best of their knowledge after reasonable investigation, as of the Closing
Date (or any Option Closing Date if such date is other than the Closing Date), the representations and warranties of the Company in this
Agreement are true and correct and the Company has complied with all agreements and satisfied all conditions on its part to be performed
or satisfied hereunder at or prior to the Closing Date (or any Option Closing Date if such date is other than the Closing Date), and
(iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference
in the Disclosure Package, any material adverse change in the financial position or results of operations of the Company, or any change
or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change,
in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company, except as
set forth in the Prospectus.
4.4.2.
Secretary’s Certificate. At each of the Closing Date and the Option Closing Date, if any, the Representative shall have
received a certificate of the Company signed by the Secretary of the Company, dated the Closing Date or the Option Date, as the case
may be, respectively, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in
full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full
force and effect and have not been modified; (iii) as to the accuracy and completeness of all correspondence between the Company or its
counsel and the Commission; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate
shall be attached to such certificate.
4.4.3.
Chief Financial Officer’s Certificate. At each of the Closing Date and the Option Closing Date, if any, the Representative
shall have received a certificate of the Chief Financial Officer of the Company, dated the Closing Date or the Option Date, as the case
may be, respectively, with respect to the accuracy of certain information contained in the Registration Statement, the Disclosure Package
and the Prospectus, in a form reasonably acceptable to the Representative.
4.5
No Material Changes. Prior to and on each of the Closing Date and each Option Closing Date, if any: (i) there shall have
been no Material Adverse Change or development involving a prospective Material Adverse Change from the latest dates as of which such
condition is set forth in the Registration Statement and no change in the capital stock or debt of the Company, the Disclosure Package
and the Prospectus; (ii) no action, suit or proceeding, at law or in equity, shall have been pending or threatened against the Company
or any Insider before or by any court or federal or state commission, board or other administrative agency wherein an unfavorable decision,
ruling or finding may materially adversely affect the business, operations, properties, assets, prospects or financial condition or income
of the Company, except as set forth in the Registration Statement, the Disclosure Package and the Prospectus; (iii) no stop order
shall have been issued under the Securities Act and no proceedings therefor shall have been initiated or threatened by the Commission;
(iv) no action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any
Governmental Entity which would prevent the issuance or sale of the Public Securities or materially and adversely affect or potentially
materially and adversely affect the business or operations of the Company; (v) no injunction, restraining order or order of any other
nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the
Public Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the
Company; and (vi) the Registration Statement, the Disclosure Package and the Prospectus and any amendments or supplements thereto
shall contain all material statements which are required to be stated therein in accordance with the Securities Act and the Securities
Act Regulations and shall conform in all material respects to the requirements of the Securities Act and the Securities Act Regulations,
and neither the Registration Statement, the Disclosure Package nor the Prospectus nor any amendment or supplement thereto shall contain
any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading.
4.6
Corporate Proceedings. All corporate proceedings and other legal matters incident to the authorization, form and validity of each
of this Agreement, the Public Securities, the Registration Statement, the Disclosure Package and the Prospectus and all other legal matters
relating to this Agreement and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects
to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
4.7
Delivery of Agreements.
4.7.1.
Lock-Up Agreements. On or before the date of this Agreement, the Company shall have delivered to the Representative executed copies
of the Lock-Up Agreements from each of the persons listed in Schedule 3 hereto.
4.7.2.
Pre-Funded Warrants. On the Closing Date and at each Option Closing Date (if any), the Company shall have delivered to the
Representative executed copies of the Pre-Funded Warrants.
4.8
Additional Documents. At the Closing Date and at each Option Closing Date (if any) Representative Counsel shall have been furnished
with such documents and opinions as they may reasonably require for the purpose of enabling Representative Counsel to deliver an opinion
to the Underwriters, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Public Securities
and the as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and Representative Counsel.
5.
Indemnification.
5.1
Indemnification of the Underwriters.
5.1.1.
General. Subject to the conditions set forth below, the Company agrees to indemnify and hold harmless each Underwriter, its affiliates
and each of its and their respective directors, officers, members, employees, representatives, partners, stockholders, affiliates, counsel,
and agents and each person, if any, who controls any such Underwriter within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act (collectively the “Underwriter Indemnified Parties,” and each an “Underwriter Indemnified
Party”), against any and all loss, liability, claim, damage and expense whatsoever (including but not limited to any and all
legal or other expenses reasonably incurred in investigating, preparing or defending against any litigation, commenced or threatened,
or any claim whatsoever, whether arising out of any action between any of the Underwriter Indemnified Parties and the Company or between
any of the Underwriter Indemnified Parties and any third party, or otherwise) to which they or any of them may become subject under the
Securities Act, the Exchange Act or any other statute or at common law or otherwise or under the laws of foreign countries (a “Claim”),
(i) arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in (A) the Registration
Statement, the Disclosure Package, any Preliminary Prospectus, the Prospectus, or in any Issuer Free Writing Prospectus or in any Written
Testing-the-Waters Communication (as from time to time each may be amended and supplemented); (B) any materials or information provided
to investors by, or with the approval of, the Company in connection with the marketing of the Offering, including any “road show”
or investor presentations made to investors by the Company (whether in person or electronically); or (C) any application or other document
or written communication (in this Section 5, collectively called “application”) executed by the Company or based upon written
information furnished by the Company in any jurisdiction in order to qualify the Public Securities under the securities laws thereof
or filed with the Commission, any state securities commission or agency, the Exchange or any other national securities exchange; or the
omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading, unless such statement or omission was made in reliance
upon, and in conformity with, the Underwriters’ Information or (ii) otherwise arising in connection with or allegedly in connection
with the Offering. The Company also agrees that it will reimburse each Underwriter Indemnified Party for all fees and expenses (including
but not limited to any and all legal or other expenses reasonably incurred in investigating, preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever, whether arising out of any action between any of the Underwriter Indemnified Parties
and the Company or between any of the Underwriter Indemnified Parties and any third party, or otherwise) (collectively, the “Expenses”),
and further agrees wherever and whenever possible to advance payment of Expenses as they are incurred by an Underwriter Indemnified Party
in investigating, preparing, pursuing or defending any Claim.
5.1.2.
Procedure. If any action is brought against an Underwriter Indemnified Party in respect of which indemnity may be sought against
the Company pursuant to Section 5.1.1, such Underwriter Indemnified Party shall promptly notify the Company in writing of the institution
of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the
approval of such Underwriter Indemnified Party) and payment of actual expenses if an Underwriter Indemnified Party requests that the
Company do so. Such Underwriter Indemnified Party shall have the right to employ its or their own counsel in any such case, but the fees
and expenses of such counsel shall be at the expense of the Company, and shall be advanced by the Company. The Company shall not be liable
for any settlement of any action effected without its consent (which shall not be unreasonably withheld). In addition, the Company shall
not, without the prior written consent of the Underwriters, 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 advancement, reimbursement, indemnification or contribution may
be sought hereunder (whether or not such Underwriter Indemnified Party is a party thereto) unless such settlement, compromise, consent
or termination (i) includes an unconditional release of each Underwriter Indemnified Party, acceptable to such Underwriter Indemnified
Party, from all liabilities, expenses and claims arising out of such action for which indemnification or contribution may be sought and
(ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any Underwriter
Indemnified Party.
5.2
Indemnification of the Company. Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless the Company,
its directors, its officers who signed the Registration Statement and persons who control the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the
foregoing indemnity from the Company to the several Underwriters, as incurred, but only with respect to untrue statements or omissions
made in the Registration Statement, any Preliminary Prospectus, the Disclosure Package or Prospectus or any amendment or supplement thereto
or in any application, in reliance upon, and in strict conformity with, the Underwriters’ Information. In case any action shall
be brought against the Company or any other person so indemnified based on any Preliminary Prospectus, the Registration Statement, the
Disclosure Package or Prospectus or any amendment or supplement thereto or any application, and in respect of which indemnity may be
sought against any Underwriter, such Underwriter shall have the rights and duties given to the Company, and the Company and each other
person so indemnified shall have the rights and duties given to the several Underwriters by the provisions of Section 5.1.2. The Company
agrees promptly to notify the Representative of the commencement of any litigation or proceedings against the Company or any of its officers,
directors or any person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, in connection with the issuance and sale of the Public Securities or in connection with the Registration Statement, the
Disclosure Package, the Prospectus, or any Issuer Free Writing Prospectus or any Written Testing-the-Waters Communication.
5.3
Contribution.
5.3.1.
Contribution Rights. If the indemnification provided for in this Section 5 shall for any reason be unavailable to or insufficient
to hold harmless an indemnified party under Section 5.1 or 5.2 in respect of any loss, claim, damage or liability, or any action in respect
thereof, referred to therein, then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits received by the Company, on the one hand, and the Underwriters,
on the other, from the Offering of the Public Securities, or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company, on the one hand, and the Underwriters, on the other, with respect to the statements or omissions that
resulted in such loss, claim, damage or liability, or action in respect thereof, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the Underwriters, on the other, with respect to such Offering shall
be deemed to be in the same proportion as the total net proceeds from the Offering of the Public Securities purchased under this Agreement
(before deducting expenses) received by the Company, as set forth in the table on the cover page of the Prospectus, on the one hand,
and the total underwriting discounts and commissions received by the Underwriters with respect to the shares of the Common Stock purchased
under this Agreement, as set forth in the table on the cover page of the Prospectus, on the other hand. The relative fault shall be determined
by reference to whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or the Underwriters, the intent of the parties and their relative knowledge, access
to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would
not be just and equitable if contributions pursuant to this Section 5.3.1 were to be determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of allocation that does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a result of the loss, claim, damage or liability, or action
in respect thereof, referred to above in this Section 5.3.1 shall be deemed to include, for purposes of this Section 5.3.1, any legal
or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 5.3.1 in no event shall an Underwriter be required to contribute any amount in excess
of the amount by which the total underwriting discounts and commissions received by such Underwriter with respect to the Offering of
the Public Securities exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
5.3.2.
Contribution Procedure. Within fifteen (15) days after receipt by any party to this Agreement (or its representative) of notice
of the commencement of any action, suit or proceeding, such party will, if a claim for contribution in respect thereof is to be made
against another party (“contributing party”), notify the contributing party of the commencement thereof, but the failure
to so notify the contributing party will not relieve it from any liability which it may have to any other party other than for contribution
hereunder. In case any such action, suit or proceeding is brought against any party, and such party notifies a contributing party or
its representative of the commencement thereof within the aforesaid 15 days, the contributing party will be entitled to participate therein
with the notifying party and any other contributing party similarly notified. Any such contributing party shall not be liable to any
party seeking contribution on account of any settlement of any claim, action or proceeding affected by such party seeking contribution
on account of any settlement of any claim, action or proceeding affected by such party seeking contribution without the written consent
of such contributing party. The contribution provisions contained in this Section 5.3.2 are intended to supersede, to the extent permitted
by law, any right to contribution under the Securities Act, the Exchange Act or otherwise available. Each Underwriter’s obligations
to contribute pursuant to this Section 5.3 are several and not joint.
6.
Default by an Underwriter.
6.1
Default Not Exceeding 10% of Firm Securities or Option Securities. If any Underwriter or Underwriters shall default in its or
their obligations to purchase the Firm Securities or the Option Securities, if the Over-allotment Option is exercised hereunder, and
if the number of the Firm Securities or Option Securities with respect to which such default relates does not exceed in the aggregate
10% of the number of Firm Securities or Option Securities that all Underwriters have agreed to purchase hereunder, then such Firm Securities
or Option Securities to which the default relates shall be purchased by the non-defaulting Underwriters in proportion to their respective
commitments hereunder.
6.2
Default Exceeding 10% of Firm Securities or Option Securities. In the event that the default addressed in Section 6.1 relates
to more than 10% of the Firm Securities or Option Securities, you may in your discretion arrange for yourself or for another party or
parties to purchase such Firm Securities or Option Securities to which such default relates on the terms contained herein. If, within
one (1) Business Day after such default relating to more than 10% of the Firm Securities or Option Securities, you do not arrange for
the purchase of such Firm Securities or Option Securities, then the Company shall be entitled to a further period of one (1) Business
Day within which to procure another party or parties satisfactory to you to purchase said Firm Securities or Option Securities on such
terms. In the event that neither you nor the Company arrange for the purchase of the Firm Securities or Option Securities to which a
default relates as provided in this Section 6, this Agreement will automatically be terminated by you or the Company without liability
on the part of the Company (except as provided in Sections 3.10 and 5 hereof) or the several Underwriters (except as provided in Section
5 hereof); provided, however, that if such default occurs with respect to the Option Securities, this Agreement will not terminate as
to the Firm Securities; and provided, further, that nothing herein shall relieve a defaulting Underwriter of its liability, if any, to
the other Underwriters and to the Company for damages occasioned by its default hereunder.
6.3
Postponement of Closing Date. In the event that the Firm Securities or Option Securities to which the default relates are to be
purchased by the non-defaulting Underwriters, or are to be purchased by another party or parties as aforesaid, you or the Company shall
have the right to postpone the Closing Date or Option Closing Date for a reasonable period, but not in any event exceeding five (5) Business
Days, in order to effect whatever changes may thereby be made necessary in the Registration Statement, the Disclosure Package or the
Prospectus or in any other documents and arrangements, and the Company agrees to file promptly any amendment to the Registration Statement,
the Disclosure Package or the Prospectus that in the opinion of counsel for the Underwriter may thereby be made necessary. The term “Underwriter”
as used in this Agreement shall include any party substituted under this Section 6 with like effect as if it had originally been a party
to this Agreement with respect to such shares of Common Stock.
7.
Additional Covenants.
7.1
Board Composition and Board Designations. The Company shall ensure that: (i) the qualifications of the persons serving as
members of the Board of Directors and the overall composition of the Board comply with the Sarbanes-Oxley Act, with the Exchange Act
and with the listing rules of the Exchange or any other national securities exchange, as the case may be, in the event the Company seeks
to have its Common Stock (including, without limitation, the Firm Shares and the Option Shares) listed on another exchange or quoted
on an automated quotation system, and (ii) if applicable, at least one member of the Audit Committee of the Board of Directors qualifies
as an “audit committee financial expert,” as such term is defined under Regulation S-K and the listing rules of the Exchange.
7.2
Prohibition on Press Releases and Public Announcements. The Company shall not issue press releases or engage in any other publicity,
without the Representative’s prior written consent, for a period ending at 5:00 p.m., Eastern time, on the first (1st)
Business Day following the fortieth (40th) day after the Closing Date, other than normal and customary releases issued in
the ordinary course of the Company’s business.
8.
Effective Date of this Agreement and Termination Thereof.
8.1
Effective Date. This Agreement shall become effective when both the Company and the Representative have executed the same and
delivered counterparts of such signatures to the other party.
8.2
Termination. The Representative shall have the right to terminate this Agreement at any time prior to any Closing Date, (i) if
any domestic or international event or act or occurrence has materially disrupted, or in your opinion will in the immediate future materially
disrupt, general securities markets in the United States; or (ii) if trading on the New York Stock Exchange or the Nasdaq Stock
Market LLC shall have been suspended or materially limited, or minimum or maximum prices for trading shall have been fixed, or maximum
ranges for prices for securities shall have been required by FINRA or by order of the Commission or any other government authority having
jurisdiction; or (iii) if the United States shall have become involved in a new war or an increase in major hostilities; or (iv) if
a banking moratorium has been declared by a New York State or federal authority; or (v) if a moratorium on foreign exchange trading
has been declared which materially adversely impacts the United States securities markets; or (vi) if the Company shall have sustained
a material loss by fire, flood, accident, hurricane, earthquake, theft, sabotage or other calamity or malicious act which, whether or
not such loss shall have been insured, will, in your opinion, make it inadvisable to proceed with the delivery of the Firm Securities
or Option Securities; or (vii) if the Company is in material breach of any of its representations, warranties or covenants hereunder;
or (viii) if the Representative shall have become aware after the date hereof of such a Material Adverse Change, or such material
adverse change in general market conditions as in the Representative’s judgment would make it impracticable to proceed with the
offering, sale and/or delivery of the Public Securities or to enforce contracts made by the Underwriters for the sale of the Public Securities.
8.3
Expenses. Notwithstanding anything to the contrary in this Agreement, except in the case of a default by the Underwriters, pursuant
to Section 6.2 above, in the event that this Agreement shall not be carried out for any reason whatsoever, within the time specified
herein or any extensions thereof pursuant to the terms herein, the Company shall be obligated to pay to the Underwriters their actual
and accountable out-of-pocket expenses related to the transactions contemplated herein then due and payable (including the fees and disbursements
of Representative Counsel) up to $50,000, inclusive of the $15,000 advance for out-of-pocket accountable expenses previously paid by
the Company to the Representative (the “Advance”) and upon demand the Company shall pay the full amount thereof to
the Representative on behalf of the Underwriters; provided, however, that such expense cap in no way limits or impairs the indemnification
and contribution provisions of this Agreement. Notwithstanding the foregoing, any advance received by the Representative will be reimbursed
to the Company to the extent not actually incurred in compliance with FINRA Rule 5110(g)(4)(A).
8.4
Indemnification. Notwithstanding any contrary provision contained in this Agreement, any election hereunder or any termination
of this Agreement, and whether or not this Agreement is otherwise carried out, the provisions of Section 5 shall remain in full force
and effect and shall not be in any way affected by, such election or termination or failure to carry out the terms of this Agreement
or any part hereof.
8.5
Representations, Warranties, Agreements to Survive. All representations, warranties and agreements contained in this Agreement
or in certificates of officers of the Company submitted pursuant hereto, shall remain operative and in full force and effect regardless
of (i) any investigation made by or on behalf of any Underwriter or its Affiliates or selling agents, any person controlling any
Underwriter, its officers or directors or any person controlling the Company or (ii) delivery of and payment for the Public Securities.
9.
Miscellaneous.
9.1
Notices. All communications hereunder, except as herein otherwise specifically provided, shall be in writing and shall be mailed
(registered or certified mail, return receipt requested), personally delivered or sent by electronic mail transmission and confirmed
and shall be deemed given when so delivered and confirmed or if mailed, two (2) days after such mailing.
If
to the Representative:
ThinkEquity
LLC
17
State Street, 41st Floor
New
York, New York 10004
Attn: Head of Investment Banking
Email:
Notices@think-equity.com
with
a copy (which shall not constitute notice) to:
Blank
Rome LLP
1271 Avenue of the Americas
New York, New York 10020
Attn:
Brad L. Shiffman, Esq.
Email:
Brad.Shiffman@blankrome.com
If
to the Company:
Polar
Power, Inc.
249
E. Gardena Blvd.
Gardena,
California 90248
Attention:
Arthur D. Sams
Email:
asams@polarpowerinc.com
with
a copy to:
Polar
Power, Inc.
249
E. Gardena Blvd.
Gardena,
California 90248
Attention:
Luis Zavala
Email:
lzavala@polarpowerinc.com
with
a copy (which shall not constitute notice) to:
Loeb
& Loeb LLP
345
Park Avenue
New
York, New York 10154
Attention:
Mitchell Nussbaum
Email:
mnussbaum@loeb.com
9.2
Research Analyst Independence. The Company acknowledges that each Underwriter’s research analysts and research departments are
required to be independent from its investment banking division and are subject to certain regulations and internal policies, and that
such Underwriter’s research analysts may hold views and make statements or investment recommendations and/or publish research reports
with respect to the Company and/or the Offering that differ from the views of their investment banking division. The Company acknowledges
that each Underwriter is a full service securities firm and as such from time to time, subject to applicable securities laws, rules and
regulations, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or
equity securities of the Company; provided, however, that nothing in this Section 9.2 shall relieve the Underwriter of any responsibility
or liability it may otherwise bear in connection with activities in violation of applicable securities laws, rules or regulations.
9.3
Headings. The headings contained herein are for the sole purpose of convenience of reference, and shall not in any way limit or
affect the meaning or interpretation of any of the terms or provisions of this Agreement.
9.4
Amendment. This Agreement may only be amended by a written instrument executed by each of the parties hereto.
9.5
Entire Agreement. This Agreement (together with the other agreements and documents being delivered pursuant to or in connection
with this Agreement) constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and thereof, and
supersedes all prior agreements and understandings of the parties, oral and written, with respect to the subject matter hereof. Notwithstanding
anything to the contrary set forth herein, it is understood and agreed by the parties hereto that all other terms and conditions of that
certain engagement letter between the Company and ThinkEquity LLC, dated November 8, 2023, shall remain in full force and effect.
9.6
Binding Effect. This Agreement shall inure solely to the benefit of and shall be binding upon the Representative, the Underwriters,
the Company and the controlling persons, directors and officers referred to in Section 5 hereof, and their respective successors, legal
representatives, heirs and assigns, and no other person shall have or be construed to have any legal or equitable right, remedy or claim
under or in respect of or by virtue of this Agreement or any provisions herein contained. The term “successors and assigns”
shall not include a purchaser, in its capacity as such, of securities from any of the Underwriters.
9.7
Governing Law; Consent to Jurisdiction; Trial by Jury. This Agreement shall be governed by and construed and enforced in accordance
with the laws of the State of New York, without giving effect to conflict of laws principles thereof. The Company hereby agrees that
any action, proceeding or claim against it arising out of, or relating in any way to this Agreement shall be brought and enforced in
the New York Supreme Court, County of New York, or in the United States District Court for the Southern District of New York, and irrevocably
submits to such jurisdiction, which jurisdiction shall be exclusive. The Company hereby waives any objection to such exclusive jurisdiction
and that such courts represent an inconvenient forum. Any such process or summons to be served upon the Company may be served by transmitting
a copy thereof by registered or certified mail, return receipt requested, postage prepaid, addressed to it at the address set forth in
Section 9.1 hereof. Such mailing shall be deemed personal service and shall be legal and binding upon the Company in any action, proceeding
or claim. The Company agrees that the prevailing party(ies) in any such action shall be entitled to recover from the other party(ies)
all of its reasonable attorneys’ fees and expenses relating to such action or proceeding and/or incurred in connection with the
preparation therefor. The Company (on its behalf and, to the extent permitted by applicable law, on behalf of its stockholders and affiliates)
and each of the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial
by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
9.8
Execution in Counterparts. This Agreement may be executed in one or more counterparts, and by the different parties hereto in
separate counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one and the
same agreement, and shall become effective when one or more counterparts has been signed by each of the parties hereto and delivered
to each of the other parties hereto. Delivery of a signed counterpart of this Agreement by facsimile or email/pdf transmission shall
constitute valid and sufficient delivery thereof.
9.9
Waiver, etc. The failure of any of the parties hereto to at any time enforce any of the provisions of this Agreement shall not
be deemed or construed to be a waiver of any such provision, nor to in any way effect the validity of this Agreement or any provision
hereof or the right of any of the parties hereto to thereafter enforce each and every provision of this Agreement. No waiver of any breach,
non-compliance or non-fulfillment of any of the provisions of this Agreement shall be effective unless set forth in a written instrument
executed by the party or parties against whom or which enforcement of such waiver is sought; and no waiver of any such breach, non-compliance
or non-fulfillment shall be construed or deemed to be a waiver of any other or subsequent breach, non-compliance or non-fulfillment.
[Signature
Page Follows]
If
the foregoing correctly sets forth the understanding between the Underwriters and the Company, please so indicate in the space provided
below for that purpose, whereupon this letter shall constitute a binding agreement between us.
|
Very truly yours, |
|
|
|
|
POLAR POWER, INC. |
|
|
|
|
By: |
/s/
Arthur D. Sams |
|
Name: |
Arthur
D. Sams
|
|
Title: |
President and CEO |
Confirmed
as of the date first written above mentioned, on behalf of itself and as Representative of the several Underwriters named on Schedule
1 hereto: |
|
|
|
THINKEQUITY LLC |
|
|
|
|
By: |
/s/
Eric Lord |
|
Name: |
Eric Lord |
|
Title: |
Head of Investment Banking |
|
[Signature
Page]
POLAR
POWER, Inc. – Underwriting Agreement
SCHEDULE
1
Underwriter | |
Total
Number of Firm Shares to be Purchased | | |
Total
Number of Firm Pre-Funded Warrants to be Purchased | | |
Total
Number of Option Shares and/or Option Pre-Funded Warrants to be Purchased if the Over-Allotment Option is Fully Exercised | |
ThinkEquity LLC | |
| 4,000,000 | | |
| 0 | | |
| 600,000 | |
TOTAL | |
| 4,000,000 | | |
| 0 | | |
| 6000,000 | |
SCHEDULE
2-A
Pricing
Information
Number
of Firm Shares: 4,000,000
Number
of Firm Pre-Funded Warrants: 0
Number
of Option Shares and/or Option Pre-Funded Warrants: 600,000
Public
Offering Price per Share: $0.40
Public
Offering Price per Pre-Funded Warrant: $0.3999
Underwriting
Discount per Share: $0.024
Underwriting
Discount per Pre-Funded Warrant: $0.024
Proceeds
to Company per Share (before expenses): $0.376
Proceeds
to Company per Pre-Funded Warrant (before expenses): $0.3579
SCHEDULE
2-B
Issuer
General Use Free Writing Prospectuses
N/A
SCHEDULE
2-C
Written
Testing-the-Waters Communications
None.
SCHEDULE
3
List
of Lock-Up Parties
Officers
and Directors:
Arthur
D. Sams
Luis
Zavala
Keith
Albrecht
Peter
Gross
Katherine
Koster
EXHIBIT
A
PRE-FUNDED
COMMON STOCK PURCHASE WARRANT
POLAR
POWER, INC.
Warrant
Shares: _______
Issue
Date: ____, 2023
THIS
PRE-FUNDED COMMON STOCK PURCHASE WARRANT (the “Warrant”) certifies that, for value received, ______________or
its assigns (the “Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions
hereinafter set forth, at any time on or after the Issue Date and until this Warrant is exercised in full (the “Termination
Date”) but not thereafter, to subscribe for and purchase from Polar Power, Inc., a Delaware corporation (the “Company”),
up to _________ shares of Common Stock (as subject to adjustment hereunder, the “Warrant Shares”). The
purchase price of one share of Common Stock under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b).
Section
1. Definitions. In addition to the terms defined elsewhere in this Warrant, the following terms have the meanings indicated
in this Section 1:
“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.
“Commission”
means the United States Securities and Exchange Commission.
“Common
Stock” means the common stock of the Company, par value $0.0001 per share, and any other class of securities into which such
securities may hereafter be reclassified or changed.
“Common
Stock Equivalents” means any securities of the Company which would entitle the holder thereof to acquire at any time Common
Stock, including, without limitation, any debt, preferred stock, right, option, warrant 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.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Liens”
means a lien, charge pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Person”
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.
“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding,
such as a deposition), whether commenced or threatened.
“Registration
Statement” means the Company’s registration statement on Form S-3 (File No. 333-252196).
“Rule
144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted
from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect
as such Rule.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Trading
Day” means a day on which the Common Stock is traded on a Trading Market.
“Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date
in question: the OTCQB, OTCQX or Pink Open Market operated by OTC Markets Group, the NYSE American, the Nasdaq Capital Market, the Nasdaq
Global Market, the Nasdaq Global Select Market, or the New York Stock Exchange (or any successors to any of the foregoing).
“Transfer
Agent” means VStock Transfer LLC, with a mailing address of 18 Lafayette Place, Woodmere, New York 11598, and any successor
transfer agent of the Company.
“Warrants”
means this Warrant and other Pre-Funded Common Stock Purchase Warrants issued by the Company pursuant to the Registration Statement.
Section
2. Exercise.
a)
Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times on or after the Issue
Date and on or before the Termination Date by delivery to the Company of a duly executed facsimile copy (or e-mail attachment) of the
Notice of Exercise in the form annexed hereto (the “Notice of Exercise”). Within the earlier of (i) two (2) Trading
Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined in Section 2(d)(i) herein) following the
date of exercise as aforesaid, the Holder shall deliver to the Company the aggregate Exercise Price for the Warrant Shares specified
in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United States bank unless the cashless exercise
procedure specified in Section 2(c) below is specified in the applicable Notice of Exercise. No ink-original Notice of Exercise shall
be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise be required. Notwithstanding
anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company until the Holder
has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised in full, in which case, the Holder shall
surrender this Warrant to the Company for cancellation within three (3) Trading Days of the date on which the final Notice of Exercise
is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the total number of Warrant Shares
available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable hereunder in an amount equal
to the applicable number of Warrant Shares purchased in connection with such partial exercise. The Holder and the Company shall maintain
records showing the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection to any
Notice of Exercise within one (1) Trading Day of receipt of such notice. The Holder and any assignee, by acceptance of this Warrant,
acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares
hereunder, the number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on the
face hereof.
b)
Exercise Price. The aggregate exercise price of this Warrant, except for a nominal exercise price of $0.0001 per Warrant
Share, was pre-funded to the Company on or prior to the Issue Date and, consequently, no additional consideration (other than the nominal
exercise price of $0.0001 per Warrant Share) shall be required to be paid by the Holder to any Person to effect any exercise of this
Warrant. The Holder shall not be entitled to the return or refund of all, or any portion, of such pre-paid aggregate exercise price under
any circumstance or for any reason whatsoever, including in the event this Warrant shall not have been exercised prior to the Termination
Date. The remaining unpaid exercise price per share of Common Stock under this Warrant shall be $0.0001, subject to adjustment hereunder
(the “Exercise Price”).
c)
Cashless Exercise. This Warrant may also be exercised, in whole or in part, at such time by means of a “cashless exercise”
in which the Holder shall be entitled to receive a number of Warrant Shares for the deemed surrender of the Warrant in whole or in part
equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
|
(A) | =
as applicable: (i) the VWAP of the Common Stock on the Trading Day immediately preceding
the date of the applicable Notice of Exercise if such Notice of Exercise is (1) both executed
and delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day or (2) both
executed and delivered pursuant to Section 2(a) hereof on a Trading Day prior to the opening
of “regular trading hours” (as defined in Rule 600(b)(68) of Regulation NMS promulgated
under the federal securities laws) on such Trading Day, (ii) at the option of the Holder,
either (x) the VWAP on the Trading Day immediately preceding the date of the applicable Notice
of Exercise or (y) the Bid Price of the Common Stock as of the time of the Holder’s
execution of the applicable Notice of Exercise if such Notice of Exercise is executed during
“regular trading hours” on a Trading Day and is delivered within two (2) hours
thereafter pursuant to Section 2(a) hereof (including until two (2) hours after the close
of “regular trading hours” on a Trading Day), or (iii) the Closing Sale Price
of the Common Stock on the date of the applicable Notice of Exercise if the date of such
Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered
pursuant to Section 2(a) hereof after the close of “regular trading hours” on
such Trading Day; |
|
| |
|
(B) | =
the Exercise Price of this Warrant, as adjusted hereunder; and |
|
| |
|
(X) | =
the number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance
with the terms of this Warrant if such exercise were by means of a cash exercise rather than a cashless
exercise. |
The
issue price for each such Warrant Share to be issued pursuant to the cashless exercise of a Warrant will be equal to (B), as defined
above, and the total issue price for the aggregate number of Warrant Shares issued pursuant to the cashless exercise of a Warrant will
be deemed paid and satisfied in full by the deemed surrender to the Company of the portion of such Warrant being exercised in accordance
with this Section 1(c). Notwithstanding anything herein to the contrary, the Company shall not be required to make any cash payments
or net cash settlement to the Holder in lieu of delivery of the Warrant Shares. If Warrant Shares are issued in such a cashless exercise,
the parties acknowledge and agree that in accordance with Section 3(a)(9) of the Securities Act, the Warrant Shares shall take on the
registered characteristics of the Warrants being exercised. The Company agrees not to take any position contrary to this Section 2(c).
“Bid
Price” means, for any security as of the particular time of determination, the bid price for such security on the Trading Market
as reported by Bloomberg as of such time of determination, or, if the Trading Market is not the principal securities exchange or trading
market for such security, the bid price of such security on the principal securities exchange or trading market where such security is
listed or traded as reported by Bloomberg as of such time of determination, or if the foregoing does not apply, the bid price of such
security in the over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg as of such time of
determination, or, if no bid price is reported for such security by Bloomberg as of such time of determination, the average of the bid
prices of any market makers for such security as reported on the Pink Open Market as of such time of determination. If the Bid Price
cannot be calculated for a security as of the particular time of determination on any of the foregoing bases, the Bid Price of such security
as of such time of determination shall be the fair market value as mutually determined by the Company and the Holder. If the Company
and the Holder are unable to agree upon the fair market value of such security, then such fair market value shall be determined pursuant
to the provisions set forth in clause (d) of the definition of VWAP. All such determinations to be appropriately adjusted for any stock
dividend, share split, share consolidation, reclassification or other similar transaction during the applicable calculation period.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed
or quoted for trading on a Trading Market other than the OTCQB, OTCQX or Pink Open Market operated by OTC Markets Group, the daily volume
weighted average price of the Common Stock for such date (or the nearest preceding date) on the Trading Market on which the Common Stock
is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:00 p.m. (New
York City time)), (b) if the Common Stock is then quoted for trading on the OTCQB or OTCQX operated by OTC Markets Group, the volume
weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the
Common Stock is then quoted for trading on the Pink Open Market operated by OTC Markets Group (or a similar organization or agency succeeding
to its functions of reporting prices), the most recent Bid Price per share of Common Stock reported on the Pink Open Market, or (d) in
all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by
the holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company, the fees and expenses
of which shall be paid by the Company.
d)
Mechanics of Exercise.
i.
Delivery of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by
the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository
Trust Company through its Deposit or Withdrawal at Custodian system (the “DWAC”) if the Company is then a participant
in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to, or resale
of, the Warrant Shares by the Holder or (B) this Warrant is being exercised via cashless exercise, and otherwise by physical delivery
of a certificate, registered in the Company’s share register in the name of the Holder or its designee, for the number of Warrant
Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise by
the date that is the earlier of (i) two (2) Trading Days after the delivery of the Company of the Notice of Exercise and (ii) the number
of Trading Days comprising the Standard Settlement Period after the delivery to the Company of the Notice of Exercise (such date, the
“Warrant Share Delivery Date”). Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate
purposes to have become the Holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective
of the date of delivery of the Warrant Shares, provided that payment of the aggregate Exercise Price (other than in the case of a cashless
exercise) is received within the earlier of (i) two (2) Trading Days after the delivery to the Company of the Notice of Exercise and
(ii) the number of Trading Days comprising the Standard Settlement Period following delivery of the Notice of Exercise. If the Company
fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant Share Delivery Date,
the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject to
such exercise (based on the VWAP of the Common Stock on the date of the applicable Notice of Exercise), $10 per Trading Day (increasing
to $20 per Trading Day on the third Trading Day after the Warrant Share Delivery Date) for each Trading Day after such Warrant Share
Delivery Date until such Warrant Shares are delivered to said Holder or the Holder rescinds such exercise. The Company agrees to maintain
a Transfer Agent that is a participant in the Fast Automated Securities Transfer, or FAST, program so long as this Warrant remains outstanding
and exercisable. As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a
number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery
of the Notice of Exercise. Notwithstanding the foregoing, with respect to any Notice(s) of Exercise delivered on or prior to 12:00 p.m.
(New York City time) on the Issue Date, which may be delivered at any time after the time of execution of the Underwriting Agreement,
dated November 30, 2023 between the Company and ThinkEquity LLC, the Company agrees to deliver the Warrant Shares subject to such notice(s)
by 4:00 p.m. (New York City time) on the Issue Date.
ii.
Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of
a Holder and upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant
evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in
all other respects be identical with this Warrant.
iii.
Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section
2(d)(i) by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
iv.
Compensation for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to
the Holder, if the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions
of Section 2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required
by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, shares
of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon
such exercise (a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x)
the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds
(y) the amount obtained by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection
with the exercise at issue by (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B) at
the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise
was not honored (in which case such exercise shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock
that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the
Holder purchases shares of Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise
of Common Stock with an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately
preceding sentence the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating
the amounts payable to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing
herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without
limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver shares
of Common Stock upon exercise of the Warrant as required pursuant to the terms hereof.
v.
No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise
of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company
shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied
by the Exercise Price or round up to the next whole share.
vi.
Charges, Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax
or other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company,
and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided,
however, that in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when
surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may
require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company
shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company
(or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.
vii.
Closing of Books. The Company shall not close its stockholder books or records in any manner which prevents the timely exercise
of this Warrant, pursuant to the terms hereof.
e)
Holder’s Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the
right to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance
after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other
Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)),
would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the
number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number
of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude
the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, non-exercised portion of this Warrant
beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or
non-converted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject
to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its
Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial ownership
shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being
acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d)
of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent
that the limitation contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation to
other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable
shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination
of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution
Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company
shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status
as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder. For purposes of this Section 2(e), in determining the number of outstanding shares of Common Stock, a Holder may rely on
the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed
with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by
the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of
a Holder, the Company shall within two Trading Days confirm orally and in writing to the Holder the number of shares of Common Stock
then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion
or exercise of securities of the Company, including this Warrant, by the Holder or its Affiliates or Attribution Parties since the date
as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation”
shall be 4.99% (or, upon election by a Holder prior to the issuance of any Warrants, 9.99%) of the number of shares of Common Stock outstanding
immediately after giving effect to the issuance of Common Stock issuable upon exercise of this Warrant. The Holder, upon notice to the
Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 2(e), provided that the Beneficial Ownership
Limitation in no event exceeds 9.99% of the number of shares of Common Stock outstanding immediately after giving effect to the issuance
of Common Stock upon exercise of this Warrant held by the Holder and the provisions of this Section 2(e) shall continue to apply. Any
increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to
the Company. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with
the terms of this Section 2(e) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended
Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to
such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant.
Section
3. Certain Adjustments.
a)
Stock Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise
makes a distribution or distributions on shares of Common Stock or any other equity or equity equivalent securities payable in shares
of Common Stock (which, for avoidance of doubt, shall not include any Common Stock issued by the Company upon exercise of this Warrant),
(ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse stock
split or consolidation) outstanding Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares of Common
Stock any shares of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which the numerator shall
be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event and of which the
denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the number of shares issuable
upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant shall remain unchanged.
Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for the determination of stockholders
entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision,
combination or re-classification.
b)
Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time the Company grants,
issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record
holders of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms applicable
to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of shares
of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without
limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for the grant, issuance or sale
of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be
determined for the grant, issue or sale of such Purchase Rights (provided, however, that to the extent that the Holder’s
right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder
shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such shares of Common Stock as
a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for the Holder until
such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
c)
Pro Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or
other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital
or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend,
spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”),
at any time after the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution
to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable
upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial
Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the
date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided,
however, that to the extent that the Holder’s right to participate in any such Distribution would result in the Holder exceeding
the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in
the beneficial ownership of any shares of Common Stock as a result of such Distribution to such extent) and the portion of such Distribution
shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder
exceeding the Beneficial Ownership Limitation).
d)
Fundamental Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or
more related transactions effects any merger or amalgamation or consolidation of the Company with or into another Person, (ii) the Company,
directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially
all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange
offer (whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender
or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding
shares of Common Stock or 50% or more of the voting power of the common equity of the Company, (iv) the Company, directly or indirectly,
in one or more related transactions effects any reclassification, reorganization or recapitalization of shares of Common Stock or any
compulsory share exchange pursuant to which shares of Common Stock are effectively converted into or exchanged for other securities,
cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a share purchase agreement
or other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement)
with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding shares of Common
Stock or 50% or more of the voting power of the common equity of the Company (each a “Fundamental Transaction”), then,
upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Warrant Share that would have been
issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without
regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of shares of Common Stock of the successor or acquiring
corporation or of the Company, if it is the surviving corporation or is otherwise the continuing corporation, and any additional consideration
(the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of
shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any
limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price
shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect
of shares of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration
in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Common
Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall
be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction.
The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor
Entity”) to assume in writing all of the obligations of the Company under this Warrant in accordance with the provisions of
this Section 3(d) pursuant to written agreements prior to such Fundamental Transaction and shall, at the option of the Holder, deliver
to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar
in form and substance to this Warrant which is exercisable for a corresponding number of shares or other securities of such Successor
Entity (or its parent entity) equivalent to the shares of Common Stock acquirable and receivable upon exercise of this Warrant (without
regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies
the exercise price hereunder to such shares of or other securities (but taking into account the relative value of the shares of Common
Stock pursuant to such Fundamental Transaction and the value of such shares or securities, such number of shares or securities and such
exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental
Transaction). Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for
(so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company”
shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations
of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein.
e)
Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the
case may be. For purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date
shall be the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
f)
Notice to Holder.
i.
Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company
shall promptly deliver to the Holder by facsimile or email a notice setting forth the Exercise Price after such adjustment and any resulting
adjustment to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii.
Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on
the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C)
the Company shall authorize the granting to all holders of the shares of Common Stock rights or warrants to subscribe for or purchase
any shares of the Company or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with
any reclassification of the Common Stock, any consolidation or merger, amalgamation or arrangement to which the Company is a party, any
sale or transfer of all or substantially all of the assets of the Company, or any compulsory share exchange whereby the Common Stock
is converted into other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation
or winding up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by facsimile or email to the
Holder at its last facsimile number or email address as it shall appear upon the Warrant Register of the Company, at least 20 calendar
days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be
taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as
of which the holders of the Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are
to be determined or (y) the date on which such reclassification, consolidation, merger, amalgamation, arrangement, sale, transfer or
share exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of
record shall be entitled to exchange their shares of Common Stock for securities, cash or other property deliverable upon such reclassification,
consolidation, merger, amalgamation, arrangement sale, transfer or share exchange; provided that the failure to deliver such notice
or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified in such
notice. To the extent that any notice provided in this Warrant constitutes, or contains, material, non-public information regarding the
Company, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K. The Holder shall
remain entitled to exercise this Warrant during the period commencing on the date of such notice to the effective date of the event triggering
such notice except as may otherwise be expressly set forth herein.
Section
4. Transfer of Warrant.
a)
Transferability. This Warrant and all rights hereunder are transferable, in whole or in part, upon surrender of this Warrant at
the principal office of the Company or its designated agent, together with a written assignment of this Warrant substantially in the
form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon
the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant
or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument
of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant
shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender
this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall surrender this Warrant
to the Company within three (3) Trading Days of the date on which the Holder delivers an assignment form to the Company assigning this
Warrant in full. This Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for the purchase of Warrant
Shares without having a new Warrant issued.
b)
New Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of
the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by
the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division
or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided
or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the original Issue Date of this
Warrant and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
c)
Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the
“Warrant Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat
the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the
Holder, and for all other purposes, absent actual notice to the contrary.
Section
5. Miscellaneous.
a)
No Rights as Stockholder Until Exercise. This Warrant does not entitle the Holder to any voting rights, dividends or other rights
as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly set forth in Section
3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise” pursuant to Section 2(c) or
to receive cash payments pursuant to Section 2(d)(i) and Section 2(d)(iv) herein, in no event, including if the Company is for any reason
unable to issue and deliver Warrant Shares upon exercise of this Warrant as required pursuant to the terms thereof, shall the Company
be required to net cash settle an exercise of this Warrant.
b)
Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares,
and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which shall in no event include the
posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the Company shall make
and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate.
c)
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required
or granted herein shall not be a Trading Day, then such action may be taken or such right may be exercised on the next succeeding Trading
Day.
d)
Authorized Shares. The Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized
and unissued shares of Common Stock a sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise
of any purchase rights under this Warrant. The Company further covenants that its issuance of this Warrant shall constitute full authority
to its officers who are charged with the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under
this Warrant. The Company shall take all such reasonable action as may be necessary to assure that such Warrant Shares may be issued
as provided herein without violation of any applicable law or regulation, or of any requirements of the Trading Market upon which the
Common Stock may be listed or quoted for trading. The Company covenants that all Warrant Shares which may be issued upon the exercise
of the purchase rights represented by this Warrant will, upon exercise of the purchase rights represented by this Warrant and payment
for such Warrant Shares in accordance herewith, be duly authorized, validly issued, fully paid and non-assessable and free from all taxes,
liens and charges created by the Company in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously
with such issue).
Except
and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending
its certificate of incorporation or through any reorganization, transfer of assets, consolidation, merger, amalgamation, arrangement
dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of
the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all
such actions as may be necessary or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without
limiting the generality of the foregoing, the Company shall (i) not increase the par value of any Warrant Shares above the amount payable
therefor upon such exercise immediately prior to such increase in par value, (ii) take all such action as may be necessary or appropriate
in order that the Company may validly and legally issue fully paid and non-assessable Warrant Shares upon the exercise of this Warrant
and (iii) use commercially reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body
having jurisdiction thereof, as may be, necessary to enable the Company to perform its obligations under this Warrant.
Before
taking any action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the
Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from
any public regulatory body or bodies having jurisdiction thereof.
e)
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be governed
by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflict
of laws thereof. Each party agrees that all legal Proceedings concerning the interpretation, enforcement and defense of this Warrant
shall be commenced in the state and federal courts sitting in the City of New York, Borough of Manhattan (the “New York Courts”).
Each party hereto hereby irrevocably submits to the exclusive jurisdiction of the New York Courts for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement
of any provision hereunder), and hereby irrevocably waives, and agrees not to assert in any suit, action or Proceeding, any claim that
it is not personally subject to the jurisdiction of such New York Courts, or such New York Courts are improper or inconvenient venue
for such Proceeding. If any party shall commence an action or Proceeding to enforce any provisions of this Warrant, then the prevailing
party in such action or Proceeding shall be reimbursed by the other party for its attorneys’ fees and other costs and expenses
incurred in the investigation, preparation and prosecution of such action or Proceeding.
f)
Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and
if the Holder does not utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
g)
Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall
operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other provision
of this Warrant, if the Company willfully and knowingly fails to comply with any provision of this Warrant, which results in any material
damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including,
but not limited to, reasonable attorneys’ fees, including those of appellate Proceedings, incurred by the Holder in collecting
any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
h)
Notices. Any and all notices or other communications or deliveries to be provided by the Holders hereunder including, without
limitation, any Notice of Exercise, shall be in writing and delivered personally, by facsimile or by e-mail, or sent by a nationally
recognized overnight courier service, addressed to the Company, at 249 E. Gardena Blvd., Gardena, California 90248 (lzavala@polarpowerinc.com)
or such other facsimile number, email address or address as the Company may specify for such purposes by notice to the Holders. Any and
all notices or other communications or deliveries to be provided by the Company hereunder shall be in writing and delivered personally,
by facsimile, email or sent by a nationally recognized overnight courier service addressed to each Holder at the facsimile number, email
address or address of such Holder appearing on the books of the Company. Any notice or other communication or deliveries hereunder shall
be deemed given and effective on the earliest of (i) the time of transmission, if such notice or communication is delivered via facsimile
at the facsimile number or e-mail at the e-mail address set forth in this Section prior to 5:30 p.m. (New York City time) on any date,
(ii) the next Trading Day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile
number or e-mail at the e-mail address set forth in this Section on a day that is not a Trading Day or later than 5:30 p.m. (New York
City time) on any Trading Day, (iii) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight
courier service, or (iv) upon actual receipt by the party to whom such notice is required to be given.
i)
Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant
to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of
the Holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company
or by creditors of the Company.
j)
Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will
be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to
assert the defense in any action for specific performance that a remedy at law would be adequate.
k)
Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall
inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns
of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall
be enforceable by the Holder or holder of Warrant Shares.
l)
Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company, on
the one hand, and the Holder on the other hand.
m)
Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall
be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining
provisions of this Warrant.
n)
No Expense Reimbursement. The Holder shall in no way be required to pay, or to reimburse the Company for, any fees or expenses
of the Company’s transfer agent in connection with the issuance or holding or sale of the Common Stock, Warrant and/or Warrant
Shares. The Company shall solely be responsible for any and all such fees and expenses.
o)
Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed
a part of this Warrant.
(Signature
Page Follows)
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above
indicated.
|
POLAR
POWER, INC. |
|
|
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By: |
|
|
Name: |
|
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Title: |
|
NOTICE
OF EXERCISE
TO:
POLAR POWER, INC.
(1)
The undersigned hereby elects to purchase Warrant Shares of the Company pursuant to the terms of the attached Warrant (only if exercised
in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2)
Payment shall take the form of (check applicable box):
☐
in lawful money of the United States; or
☐
if permitted, the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection
2(c), to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure
set forth in subsection 2(c).
(3)
Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
______________________
The
Warrant Shares shall be delivered to the following DWAC Account Number:
______________________
______________________
[SIGNATURE
OF HOLDER]
______________________
Name
of Investing Entity:
Signature
of Authorized
Signatory
of Investing Entity:
Name
of Authorized Signatory:
Title
of Authorized Signatory:
Date:
ASSIGNMENT
FORM
(To
assign the foregoing Warrant, execute this form and supply required information. Do not use this form to purchase shares.)
FOR
VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
____________________
Name:
____________________________
(Please
Print)
Address:
__________________________
(Please
Print)
Phone
Number: _____________________
Email
Address: _____________________
Dated:
,
Holder’s
Signature: __________________
Holder’s
Address: __________________
EXHIBIT
B
Lock-Up
Agreement
[●],
2023
ThinkEquity
LLC
17
State Street, 41st Floor
New
York, NY 10004
As
Representative of the several Underwriters named on Schedule 1 to the Underwriting Agreement referenced below
Ladies
and Gentlemen:
The
undersigned understands that ThinkEquity LLC (the “Representative”), proposes to enter into an Underwriting Agreement
(the “Underwriting Agreement”) with Polar Power, Inc., a Delaware corporation (the “Company”),
providing for the public offering (the “Public Offering”) of shares of common stock, par value $0.0001 per share,
of the Company (the “Shares”).
To
induce the Representative to continue its efforts in connection with the Public Offering, the undersigned hereby agrees that, without
the prior written consent of the Representative, the undersigned will not, during the period commencing on the date hereof and ending
60 days after the date of the final prospectus (the “Prospectus”) relating to the Public Offering (the “Lock-Up
Period”), (1) offer, pledge, sell, contract to sell, grant, lend, or otherwise transfer or dispose of, directly or indirectly,
any Shares or any securities convertible into or exercisable or exchangeable for Shares, whether now owned or hereafter acquired by the
undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up
Securities”); (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of the Lock-Up Securities, whether any such transaction described in clause (1) or (2) above is to be settled
by delivery of Lock-Up Securities, in cash or otherwise; (3) make any demand for or exercise any right with respect to the registration
of any Lock-Up Securities; or (4) publicly disclose the intention to make any offer, sale, pledge or disposition, or to enter into any
transaction, swap, hedge or other arrangement relating to any Lock-Up Securities. Notwithstanding the foregoing, and subject to the conditions
below, the undersigned may transfer Lock-Up Securities without the prior written consent of the Representative in connection with (a)
transactions relating to Lock-Up Securities acquired in open market transactions after the completion of the Public Offering; provided
that no filing under Section 16(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
shall be required or shall be voluntarily made in connection with subsequent sales of Lock-Up Securities acquired in such open market
transactions; (b) transfers of Lock-Up Securities as a bona fide gift, by will or intestacy or to a family member or trust for
the benefit of a family member (for purposes of this lock-up agreement, “family member” means any relationship by blood,
marriage or adoption, not more remote than first cousin); (c) transfers of Lock-Up Securities to a charity or educational institution;
or (d) if the undersigned, directly or indirectly, controls a corporation, partnership, limited liability company or other business entity,
any transfers of Lock-Up Securities to any shareholder, partner or member of, or owner of similar equity interests in, the undersigned,
as the case may be; provided that in the case of any transfer pursuant to the foregoing clauses (b), (c) or (d), (i) any
such transfer shall not involve a disposition for value, (ii) each transferee shall sign and deliver to the Representative a lock-up
agreement substantially in the form of this lock-up agreement and (iii) no filing under Section 16(a) of the Exchange Act shall
be required or shall be voluntarily made. The undersigned also agrees and consents to the entry of stop transfer instructions with the
Company’s transfer agent and registrar against the transfer of the undersigned’s Lock-Up Securities except in compliance
with this lock-up agreement.
The
undersigned agrees that, prior to engaging in any transaction or taking any other action that is subject to the terms of this lock-up
agreement during the period from the date hereof to and including the 34th day following the expiration of the initial Lock-Up
Period, the undersigned will give notice thereof to the Company and will not consummate any such transaction or take any such action
unless it has received written confirmation from the Company that the Lock-Up Period (as may have been extended pursuant to the previous
paragraph) has expired.
If
the undersigned is an officer or director of the Company, (i) the undersigned agrees that the foregoing restrictions shall be equally
applicable to any issuer-directed or “friends and family” Shares that the undersigned may purchase in the Public Offering;
(ii) the Representative agrees that, at least three (3) business days before the effective date of any release or waiver of the foregoing
restrictions in connection with a transfer of Lock-Up Securities, the Representative will notify the Company of the impending release
or waiver; and (iii) the Company has agreed in the Underwriting Agreement to announce the impending release or waiver by press release
through a major news service at least two (2) business days before the effective date of the release or waiver. Any release or waiver
granted by the Representative hereunder to any such officer or director shall only be effective two (2) business days after the publication
date of such press release. The provisions of this paragraph will not apply if (a) the release or waiver is effected solely to permit
a transfer of Lock-Up Securities not for consideration and (b) the transferee has agreed in writing to be bound by the same terms described
in this lock-up agreement to the extent and for the duration that such terms remain in effect at the time of such transfer.
No
provision in this agreement shall be deemed to restrict or prohibit the exercise, exchange or conversion by the undersigned of any securities
exercisable or exchangeable for or convertible into Shares, as applicable; provided that the undersigned does not transfer the
Shares acquired on such exercise, exchange or conversion during the Lock-Up Period, unless otherwise permitted pursuant to the terms
of this lock-up agreement. In addition, no provision herein shall be deemed to restrict or prohibit the entry into or modification of
a so-called “10b5-1” plan at any time (other than the entry into or modification of such a plan in such a manner as to cause
the sale of any Lock-Up Securities within the Lock-Up Period).
The
undersigned understands that the Company and the Representative are relying upon this lock-up agreement in proceeding toward consummation
of the Public Offering. The undersigned further understands that this lock-up agreement is irrevocable and shall be binding upon the
undersigned’s heirs, legal representatives, successors and assigns.
The
undersigned understands that, if the Underwriting Agreement is not executed by [●], 20[XX], or if the Underwriting Agreement (other
than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of the Shares
to be sold thereunder, then this lock-up agreement shall be void and of no further force or effect.
Whether
or not the Public Offering actually occurs depends on a number of factors, including market conditions. Any Public Offering will only
be made pursuant to an Underwriting Agreement, the terms of which are subject to negotiation between the Company and the Representative.
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EXHIBIT
C
Form
of Press Release
POLAR
POWER, INC.
[Date]
Polar
Power, Inc. (the “Company”) announced today that ThinkEquity LLC, acting as representative for the underwriters in the Company’s
recent public offering of _______ shares of the Company’s common stock, is [waiving] [releasing] a lock-up restriction with
respect to _________ shares of the Company’s common stock held by [certain officers or directors] [an officer or director]
of the Company. The [waiver] [release] will take effect on _________, 202[ ], and the shares may be sold on or after such
date.
This
press release is not an offer or sale of the securities in the United States or in any other jurisdiction where such offer or sale is
prohibited, and such securities may not be offered or sold in the United States absent registration or an exemption from registration
under the Securities Act of 1933, as amended.
Exhibit
5.1
|
345
Park Avenue
New
York, NY 10154-1895 |
Direct
212.407.4935
Main
212.407.4000
Fax
212.407.4990 |
December
5, 2023
Polar
Power, Inc.
249
E. Gardena Blvd.
Gardena,
CA 90248
Ladies
and Gentlemen:
We
have acted as counsel to Polar Power, Inc., a Delaware corporation (the
“Company”), in connection with the offering by the Company of 4,600,000 shares of the Company’s common stock, $0.0001
par value per share (the “Shares”), which includes 600,000 Shares being offered to cover the full exercise of the over-allotment
option granted by the Company to the underwriters, pursuant to the Registration Statement on Form S-3 (File No. 333-252196) (the “Registration
Statement”) filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as
amended (the “Act”), the prospectus dated January 28, 2021 contained in the Registration Statement (the “Base Prospectus”);
and the prospectus supplement dated November 30, 2023 filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations of
the Act (the “Prospectus Supplement” and, together with the Base Prospectus, the “Prospectus”). The Shares were
issued pursuant to an Underwriting Agreement dated November 30, 2023 by and among the Company and the underwriters named therein (the
“Underwriting Agreement”). The Shares are to be sold by the Company as described in the Registration Statement and the Prospectus.
In
connection with this opinion, we have examined and relied upon the Registration Statement, the Prospectus and the Underwriting
Agreement. We have also examined originals or copies, certified or otherwise identified to our satisfaction, of the Company’s
certificate of incorporation and bylaws, as amended, and such corporate records of the Company and other certificates and documents
of officials of the Company, public officials and others as we have deemed appropriate for purposes of this letter. We have assumed
the genuineness of all signatures, the authenticity of all documents submitted to us as originals, and the conformity to authentic
original documents of all copies submitted to us as conformed and certified or reproduced copies.
Based
upon the foregoing and subject to the assumptions, exceptions, qualifications and limitations set forth hereinafter, we are of the opinion
that the Shares have been duly authorized for issuance by the Company and, when issued and paid for in accordance with the terms
of the Underwriting Agreement and the Prospectus, will be validly issued, fully paid and nonassessable.
Polar
Power, Inc. Page 2
In
rendering the foregoing opinion, we have assumed that: (i) the Company will
issue and deliver the Shares in the manner contemplated by the Registration Statement and the Prospectus; and (ii) the Shares will be
issued in compliance with applicable federal and state securities laws.
The
opinions we express above are based upon a review only of those laws, statutes, rules, ordinances and regulations which, in our experience,
a securities lawyer who is a member of the bar of the State of New York and practicing before the Commission exercising customary professional
diligence would reasonably recognize as being applicable to the foregoing transactions. While certain members of this firm are admitted
to practice in certain jurisdictions other than New York, in rendering the foregoing opinions we have not examined the laws and we do
not express any opinion herein concerning any laws other than the internal laws of the State of New York and the Delaware General Corporation
Law or consulted with members of this firm who are admitted in any other jurisdictions other than New York with respect to the laws of
any other jurisdiction. Accordingly, the opinions we express herein are limited to matters involving the internal laws of the State of
New York and the Delaware General Corporation Law.
In
addition, the foregoing opinions are subject to (a) the effect of any bankruptcy, insolvency, reorganization, moratorium, arrangement
or similar laws affecting the rights and remedies of creditors’ generally, including without limitation the effect of statutory
or other laws regarding fraudulent transfers or preferential transfers, and (b) general principles of equity, including without limitation
concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance, injunctive
relief or other equitable remedies regardless of whether enforceability is considered in a proceeding in equity or at law.
We
hereby consent to the filing of this opinion with the Commission as an exhibit to the Current Report on Form 8-K to be filed by the Company
in connection with the issuance and sale of the Shares in accordance with the requirements of Item 601(b)(5)
of Regulation S−K under the Act and to the reference to our firm therein and in the Prospectus under the caption “Legal Matters.”
In giving such consent, we do not thereby admit that this firm is within the category of persons whose consent is required under Section
7 of the Act or the rules and regulations of the Commission under such Section.
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Very
truly yours, |
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/s/
Loeb & Loeb LLP |
|
Loeb
& Loeb LLP |
Exhibit
99.1
Polar
Power, Inc. Announces Proposed Public Offering of Common Stock
Gardena,
CA – November 30, 2023 – Polar Power, Inc. (NASDAQ: POLA) (“Polar Power” or the “Company”)
today announced that it intends to offer to sell shares of its common stock (and/or pre-funded warrants (“Pre-funded Warrants”)
in lieu thereof) in an underwritten public offering. All of the shares of common stock (and/or Pre-funded Warrants) are to be sold by
the Company.
ThinkEquity
is acting as sole underwriter for the offering.
The
Company expects to grant the underwriter a 45-day option to purchase up to an additional 15% of the number of shares of common stock
and/or Pre-funded Warrants sold in this offering to cover over-allotments, if any. The offering is subject to market conditions and there
can be no assurance as to whether or when the offering may be completed, or as to the actual size or terms of the offering.
The
Company intends to use the net proceeds from the offering primarily for product development and general corporate purposes, which may
include working capital, capital expenditures, operational purposes and potential acquisitions in complementary businesses.
The
securities will be offered and sold pursuant to a shelf registration statement on Form S-3 (File No. 333-252196), including a base prospectus,
filed with the U.S. Securities and Exchange Commission (the “SEC”) on January 19, 2021 and declared effective on January
28, 2021. The offering will be made only by means of a written prospectus that forms a part of the registration statement. A preliminary
prospectus supplement and accompanying prospectus describing the terms of the offering will be filed with the SEC on its website at www.sec.gov.
Electronic copies of the preliminary prospectus supplement and the accompanying prospectus relating to the offering may also be obtained,
when available, from ThinkEquity, 17 State Street, 41st Floor, New York, New York 10004. Before investing in this offering, interested
parties should read in their entirety the preliminary prospectus supplement and the accompanying prospectus and the other documents that
the Company has filed with the SEC that are incorporated by reference in such preliminary prospectus supplement and the accompanying
prospectus, which provide more information about the Company and such offering.
This
press release shall not constitute an offer to sell or the solicitation of an offer to buy, nor shall there be any sale of these securities
in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under
the securities laws of such state or jurisdiction.
About
Polar Power, Inc.
Gardena,
California-based Polar Power, Inc. (NASDAQ: POLA), is a technology company that designs, manufactures and sells direct current, or DC,
power systems, lithium battery powered hybrid solar systems for applications in the telecommunications market and, in other markets,
including military, EV charging, cogeneration, distributed power and uninterruptable power supply. Within the telecommunications market,
Polar Power’s systems provide reliable and low-cost energy for applications for off-grid and bad-grid applications with critical
power needs that cannot be without power in the event of utility grid failure. For more information, please visit www.polarpower.com.
or follow us on www.linkedin.com/company/polar-power-inc/.
Forward-Looking
Statements
This
press release contains “forward-looking statements” within the meaning of the “safe harbor” provisions of the
Private Securities Litigation Reform Act of 1995. All statements other than statements of historical facts contained in this press release,
including statements regarding the offering and the anticipated use of the net proceeds from the offering, are forward-looking statements.
These forward-looking statements are made as of the date they were first issued and are based on current expectations, estimates, forecasts
and projections as well as the beliefs and assumptions of management. Forward-looking statements are subject to a number of risks and
uncertainties, many of which involve factors or circumstances that are beyond Polar Power’s control. Polar Power’s actual
results could differ materially from those stated or implied in forward-looking statements due to a number of factors, including, but
not limited to, the risks related to the offering of the shares and/or Pre-funded Warrants; adverse domestic and foreign economic and
market conditions, including demand for its Summit Series, 27 kW DC generator product line; trade tariffs on raw materials; changes in
domestic and foreign governmental regulations and policies; the impact of inflation and changing prices on raw materials; supply chain
constraints causing significant delays in sourcing raw materials; labor shortages as a result of the pandemic, low unemployment rates,
or other factors limiting the availability of qualified workers; and other events, factors and risks. These and other potential risks
and uncertainties that could cause actual results to differ from the results predicted are more fully detailed in Polar Power’s
filings and reports with the SEC, including the Annual Report on Form 10-K for the year ended December 31, 2022 and supplemented by the
Quarterly Reports on Form 10-Q for the quarters ended March 31, 2023, June 30, 2023 and September 30, 2023, as well as other filings
and reports that are filed by Polar Power from time to time with the SEC. Polar Power anticipates that subsequent events and developments
will cause its views to change and you should consider these factors in evaluating the forward-looking statements and not place undue
reliance on such statements. Polar Power undertakes no intention or obligation to update or revise any forward-looking statements, whether
as a result of new information, future events or otherwise. These forward-looking statements should not be relied upon as representing
Polar Power’s views as of any date subsequent to the date of this press release.
Media
and Investor Relations:
CoreIR
Peter
Seltzberg, SVP Investor Relations and Corporate Advisory
+1
212-655-0924
PR@CoreIR.com
www.CoreIR.com
Company
Contact:
Polar
Power, Inc.
249
E. Gardena Blvd.
Gardena,
CA 90248
Tel:
310-830-9153
ir@polarpowerinc.com
www.polarpower.com
Exhibit
99.2
Polar
Power, Inc. Announces Pricing of Public Offering
Gardena,
CA, November 30, 2023 — Polar Power, Inc. (NASDAQ: POLA), (“Polar Power” or the “Company”) today announced
the pricing of its previously announced underwritten public offering of 4,000,000 shares of its common stock. Each share of common stock
is being sold at a public offering price of $0.40 per share, for gross proceeds of $1,600,000 before deducting underwriting discounts,
commissions and offering expenses. All of the shares of common stock are being offered by the Company.
In
addition, the Company has granted the underwriters a 45-day option to purchase up to an additional 600,000 shares of its common stock
and/or pre-funded warrants at the public offering price less discounts and commissions, to cover over-allotments. The offering is expected
to close on December 5, 2023, subject to satisfaction of customary closing conditions.
ThinkEquity
is acting as sole underwriter for the offering.
The
securities will be offered and sold pursuant to a shelf registration statement on Form S-3 (File No. 333-252196), including a base prospectus,
filed with the U.S. Securities and Exchange Commission (the “SEC”) on January 19, 2021 and declared effective on January
28, 2021. The offering will be made only by means of a written prospectus. A prospectus supplement and accompanying prospectus describing
the terms of the offering will be filed with the SEC on its website at www.sec.gov. Copies of the prospectus supplement and the
accompanying prospectus relating to the offering may also be obtained from the offices of ThinkEquity, 17 State Street, 41st Floor, New
York, New York 10004.
This
press release shall not constitute an offer to sell or a solicitation of an offer to buy, nor shall there be any sale of these securities
in any state or jurisdiction in which such an offer, solicitation or sale would be unlawful prior to registration or qualification under
the securities laws of any such state or jurisdiction.
About
Polar Power, Inc.
Gardena,
California-based Polar Power, Inc. (NASDAQ: POLA), is a technology company that designs, manufactures and sells direct current, or DC,
power systems, lithium battery powered hybrid solar systems for applications in the telecommunications market and, in other markets,
including military, EV charging, cogeneration, distributed power and uninterruptable power supply. Within the telecommunications market,
Polar Power’s systems provide reliable and low-cost energy for applications for off-grid and bad-grid applications with critical
power needs that cannot be without power in the event of utility grid failure. For more information, please visit www.polarpower.com.
or follow us on www.linkedin.com/company/polar-power-inc/.
Forward
Looking Statements
This
press release contains “forward-looking statements” within the meaning of the “safe harbor” provisions of the
Private Securities Litigation Reform Act of 1995. All statements other than statements of historical facts contained in this press release,
including statements regarding the offering, are forward-looking statements. These forward-looking statements are made as of the date
they were first issued and are based on current expectations, estimates, forecasts and projections as well as the beliefs and assumptions
of management. Forward-looking statements are subject to a number of risks and uncertainties, many of which involve factors or circumstances
that are beyond Polar Power’s control. Polar Power’s actual results could differ materially from those stated or implied
in forward-looking statements due to a number of factors, including, but not limited to, the risks related to the offering of the shares
and/or Pre-funded Warrants; adverse domestic and foreign economic and market conditions, including demand for its Summit Series, 27 kW
DC generator product line; trade tariffs on raw materials; changes in domestic and foreign governmental regulations and policies; the
impact of inflation and changing prices on raw materials; supply chain constraints causing significant delays in sourcing raw materials;
labor shortages as a result of the pandemic, low unemployment rates, or other factors limiting the availability of qualified workers;
and other events, factors and risks. These and other potential risks and uncertainties that could cause actual results to differ from
the results predicted are more fully detailed in Polar Power’s filings and reports with the SEC, including the Annual Report on
Form 10-K for the year ended December 31, 2022 and supplemented by the Quarterly Reports on Form 10-Q for the quarters ended March 31,
2023, June 30, 2023 and September 30, 2023, as well as other filings and reports that are filed by Polar Power from time to time with
the SEC. Polar Power anticipates that subsequent events and developments will cause its views to change and you should consider these
factors in evaluating the forward-looking statements and not place undue reliance on such statements. Polar Power undertakes no intention
or obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise.
These forward-looking statements should not be relied upon as representing Polar Power’s views as of any date subsequent to the
date of this press release.
Media
and Investor Relations:
CoreIR
Peter
Seltzberg, SVP Investor Relations and Corporate Advisory
+1
212-655-0924
PR@CoreIR.com
www.CoreIR.com
Company
Contact:
Polar
Power, Inc.
249
E. Gardena Blvd.
Gardena,
CA 90248
Tel:
310-830-9153
ir@polarpowerinc.com
www.polarpower.com
Exhibit
99.3
Polar
Power, Inc. Announces Closing of Public Offering
Gardena,
CA, December 5, 2023 – Polar Power, Inc. (Nasdaq: POLA) (“Polar Power” or the “Company”), a technology
company that designs, manufactures and sells direct current, or DC, power systems, lithium battery powered hybrid solar systems for applications
in the telecommunications market and, in other markets, including military, EV charging, cogeneration, distributed power and uninterruptable
power supply, today announced the closing of its previously announced public offering of 4,600,000 shares of its common stock at a public
offering price of $0.40 per share, which include 600,000 shares sold upon full exercise of the underwriter’s option to purchase
additional shares, for gross proceeds of $1,840,000, before deducting underwriting discounts and offering expenses.
The
Company intends to use the proceeds from the offering for general corporate purposes, including working capital, research and development,
capital expenditures and potential acquisitions.
ThinkEquity
acted as sole underwriter for the offering.
The
offering was made pursuant to an effective shelf registration statement that has been filed with the U.S. Securities and Exchange Commission
(the “SEC”). The final prospectus supplement relating to the offering was filed with the SEC and is available on the SEC’s
website at http://www.sec.gov. Copies of the final prospectus supplement and the accompanying prospectus relating to the offering may
be obtained from ThinkEquity, 17 State Street, 41st Floor, New York, New York 10004.
This
press release shall not constitute an offer to sell or the solicitation of an offer to buy these securities, nor shall there be any sale
of these securities in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration
or qualification under the securities laws of any such state or other jurisdiction.
About
Polar Power, Inc.
Gardena,
California-based Polar Power, Inc. (NASDAQ: POLA), is a technology company that designs, manufactures and sells direct current, or DC,
power systems, lithium battery powered hybrid solar systems for applications in the telecommunications market and, in other markets,
including military, EV charging, cogeneration, distributed power and uninterruptable power supply. Within the telecommunications market,
Polar Power’s systems provide reliable and low-cost energy for applications for off-grid and bad-grid applications with critical
power needs that cannot be without power in the event of utility grid failure. For more information, please visit www.polarpower.com
or follow us on www.linkedin.com/company/polar-power-inc/.
Forward-Looking
Statements
This
press release contains “forward-looking statements” within the meaning of the “safe harbor” provisions of the
Private Securities Litigation Reform Act of 1995. All statements other than statements of historical facts contained in this press release,
including statements regarding the offering, are forward-looking statements. These forward-looking statements are made as of the date
they were first issued and are based on current expectations, estimates, forecasts and projections as well as the beliefs and assumptions
of management. Forward-looking statements are subject to a number of risks and uncertainties, many of which involve factors or circumstances
that are beyond Polar Power’s control. Polar Power’s actual results could differ materially from those stated or implied
in forward-looking statements due to a number of factors, including, but not limited to, the risks related to the offering of the shares;
adverse domestic and foreign economic and market conditions, including demand for its Summit Series, 27 kW DC generator product line;
trade tariffs on raw materials; changes in domestic and foreign governmental regulations and policies; the impact of inflation and changing
prices on raw materials; supply chain constraints causing significant delays in sourcing raw materials; labor shortages as a result of
the pandemic, low unemployment rates, or other factors limiting the availability of qualified workers; and other events, factors and
risks. These and other potential risks and uncertainties that could cause actual results to differ from the results predicted are more
fully detailed in Polar Power’s filings and reports with the SEC, including the Annual Report on Form 10-K for the year ended December
31, 2022 and supplemented by the Quarterly Reports on Form 10-Q for the quarters ended March 31, 2023, June 30, 2023 and September 30,
2023, as well as other filings and reports that are filed by Polar Power from time to time with the SEC. Polar Power anticipates that
subsequent events and developments will cause its views to change and you should consider these factors in evaluating the forward-looking
statements and not place undue reliance on such statements. Polar Power undertakes no intention or obligation to update or revise any
forward-looking statements, whether as a result of new information, future events or otherwise. These forward-looking statements should
not be relied upon as representing Polar Power’s views as of any date subsequent to the date of this press release.
Media
and Investor Relations:
CoreIR
Peter
Seltzberg, SVP Investor Relations and Corporate Advisory
+1
212-655-0924
PR@CoreIR.com
www.CoreIR.com
Company
Contact:
Polar
Power, Inc.
249
E. Gardena Blvd.
Gardena,
CA 90248
Tel:
310-830-9153
ir@polarpowerinc.com
www.polarpower.com
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