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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
DC 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): September 15, 2023
ESPORTS
ENTERTAINMENT GROUP, INC.
(Exact
name of registrant as specified in its charter)
Nevada |
|
001-39262 |
|
26-3062752 |
(State
or other jurisdiction of |
|
(Commission |
|
(IRS
Employer |
incorporation
or organization) |
|
File
Number) |
|
Identification
No.) |
BLOCK
6,
TRIQ
PACEVILLE,
ST.
JULIANS STJ 3109
MALTA
(Address
of principal executive offices)
356
2713 1276
(Registrant’s
telephone number, including area code)
Not
Applicable
(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:
☐ |
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 |
|
GMBL |
|
The
Nasdaq Stock Market LLC |
Common
Stock Purchase Warrants |
|
GMBLW |
|
The
Nasdaq Stock Market LLC |
10.0%
Series A Cumulative Redeemable Convertible Preferred Stock |
|
GMBLP |
|
The
Nasdaq Stock Market LLC |
Common
Stock Purchase Warrants |
|
GMBLZ |
|
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.
Equity
Distribution Agreement
On
September 15, 2023, Esports Entertainment Group, Inc. (the “Company”) entered into an Equity Distribution Agreement (the
“Equity Distribution Agreement”) with Maxim Group LLC (“Maxim Group”) under which the Company may offer and sell,
from time to time at its sole discretion, shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”),
with aggregate gross sales proceeds of up to $7,186,257 through an “at the market” equity offering program under which Maxim
Group will act as sales agent.
Under
the Equity Distribution Agreement, the Company will set the parameters for the sale of shares, including the number of shares to be issued,
the time period during which sales are requested to be made, limitations on the number of shares that may be sold in any one trading
day and any minimum price below which sales may not be made. Subject to the terms and conditions of the Equity Distribution Agreement,
Maxim Group may sell the shares by methods deemed to be an “at the market” offering as defined in Rule 415 promulgated under
the Securities Act of 1933, as amended (the “Securities Act”), including by means of ordinary brokers’ transactions
at market prices, in block transactions or as otherwise agreed by Maxim and us.
The
Equity Distribution Agreement provides that Maxim Group will be entitled to compensation for its services equal to 3.0% of the gross
proceeds of any shares of common stock sold through Maxim Group under the Equity Distribution Agreement. The Company has no obligation
to sell any shares under the Equity Distribution Agreement, and may at any time suspend solicitation and offers under the Equity Distribution
Agreement.
The
shares will be issued pursuant to the Company’s shelf registration statement on Form S-3 (File No. 333-252370) and its registration
on Form S-3 MEF (File No. 333-274542). The Company filed a prospectus supplement, dated September 15, 2023 with the Securities and
Exchange Commission (the “SEC”) in connection with the offer and sale of the shares pursuant to the Equity Distribution Agreement
(the “Prospectus Supplement”).
The
Holder of the Series C Preferred Stock and Series D Preferred Stock (the “Holder”) has the option to require the Company
to use up to 50% of the gross proceeds to redeem the outstanding Series C Convertible Preferred Stock and 50% of the gross proceeds to
redeem the Series D Convertible Preferred Stock (together the “Holder’s Redemption Amounts”), and, as a result would
use up all remaining proceeds unless waived by the Holder. The Company will not proceed with the “at the market” offering
unless the Holder’s Redemption Amounts are fully or partially waived. The Company intends to use any remaining net proceeds of
this offering for working capital and general corporate purposes to support ongoing business operations
The
Equity Distribution Agreement contains customary representations, warranties and agreements of the Company and customary conditions to
completing future sale transactions, indemnification rights and obligations of the parties and termination provisions.
The
foregoing description of the material terms of the Equity Distribution Agreement is qualified in its entirety by reference to the full
agreement, a copy of which is filed as Exhibit 1.1 to this Current Report on Form 8-K.
The
legal opinion of Westward Law, LLC relating to the shares of Common Stock that may be sold pursuant to Equity Distribution Agreement
is filed as Exhibit 5.1 to this Current Report on Form 8-K.
This
Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of any offer to buy the securities discussed herein,
nor shall there be any offer, solicitation or sale of the securities in any state in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws of any such state.
Waiver
Agreement
The
Company entered into a waiver agreement (“Waiver”) on September 15, 2023, with the Holder of the Series C
Convertible Preferred Stock and the Series D Convertible Preferred Stock, as a condition to filing the registration statement on
Form S-3 MEF on September 15, 2023 and the prospectus supplement on September 15, 2023 for the “at the market” offering.
The Waiver allowed the Company to proceed with the initial filing of such registration statement and prospectus supplement
with the SEC and not with respect to (x) any subsequent amendment or supplement thereto, (y) the issuance and sale of any of the
Company’s securities contemplated by thereby or (z) any future Subsequent Placement (as defined in the Securities Purchase Agreement, dated April 30, 2023, among the Company and the buyers named therein). The Company will seek to obtain the
Holder’s waiver in full of the Holder’s Redemption Amounts, but cannot provide assurances that it will receive any
waiver of the Holder’s Redemption Amounts.
Item
9.01 Financial Statements and Exhibits.
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
Date:
September 18, 2023
|
ESPORTS
ENTERTAINMENT GROUP, INC. |
|
|
|
|
By: |
/s/
Michael Villani |
|
Name:
|
Michael
Villani |
|
Title: |
Chief
Financial Officer and Controller |
Exhibit
1.1
ESPORTS
ENTERTAINMENT GROUP, INC.
Up
to US$7,186,257 of Common Stock
EQUITY
DISTRIBUTION AGREEMENT
September
15, 2023
Maxim
Group LLC
300
Park Avenue, 16th Floor
New
York, New York 10022
Ladies
and Gentlemen:
Esports
Entertainment Group, Inc., a Nevada corporation (the “Company”), proposes to issue and sell through Maxim Group
LLC (the “Agent”), as sales agent, common stock of the Company, par value $0.001 per share (the “Common
Stock”), having an aggregate offering price of up to US$7,186,267 of Common Stock (the Common Stock subject to this Equity
Distribution Agreement (this “Agreement”) being referred to herein as the “Shares”)
on terms set forth herein. The Shares consist entirely of authorized but unissued Common Stock to be issued and sold by the Company.
The
Company hereby confirms its agreement with the Agent with respect to the sale of the Shares.
1.
Representations and Warranties of the Company.
(a)
The Company represents and warrants to, and agrees with, the Agent as follows:
(i)
A registration statement on Form S-3 (File No. 333-252370) (the “registration statement”) was initially declared
effective by the Securities and Exchange Commission (the “Commission”) on February 5, 2021, and is currently
effective, under the Securities Act of 1933, as amended (the “Securities Act of 1933”), and the rules and regulations
promulgated thereunder (the “Rules and Regulations” and collectively with the Securities Act of 1933, the “Securities
Act”); since the date of effectiveness of the registration statement, no additional or supplemental information was requested
by the Commission; no stop order of the Commission preventing or suspending the use of any Base Prospectus (as defined below), the Prospectus
Supplement (as defined below), the Prospectus (as defined below) or any Permitted Free Writing Prospectus (as defined below), or the
effectiveness of the Registration Statement, has been issued, and no proceedings for such purpose have been instituted or, to the Company’s
knowledge, are contemplated by the Commission. Except where the context otherwise requires, “Registration Statement,”
as used herein, means the registration statement, as amended at the time of such registration statement’s effectiveness for purposes
of Section 11 of the Securities Act, as such section applies to the Agent, including (1) all documents filed as a part thereof or incorporated
or deemed to be incorporated by reference therein, (2) any information contained or incorporated by reference in a prospectus filed with
the Commission pursuant to Rule 424(b) under the Securities Act, to the extent such information is deemed, pursuant to Rule 430B or Rule
430C under the Securities Act, to be part of the registration statement at such time, and (3) any registration statement filed to register
the offer and sale of Shares pursuant to Rule 462(b) under the Securities Act (the “462(b) Registration Statement”).
Except where the context otherwise requires, “Base Prospectus,” as used herein, means the prospectus filed
as part of the Registration Statement, together with any amendments or supplements thereto as of the date of this Agreement. Except where
the context otherwise requires, “Prospectus Supplement,” as used herein, means the most recent prospectus supplement
relating to the Shares, filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act and in accordance with
the terms of this Agreement. Except where the context otherwise requires, “Prospectus,” as used herein, means
the Prospectus Supplement together with the Base Prospectus attached to or used with the Prospectus Supplement, as may be amended or
supplemented from time to time. “Permitted Free Writing Prospectus,” as used herein, means the documents, if
any, listed on Schedule A attached hereto and, after the date hereof, any “issuer free writing prospectus” as defined
in Rule 433 of the Securities Act, that is expressly agreed to by the Company and the Agent in writing to be a Permitted Free Writing
Prospectus. Any reference herein to the Registration Statement, the Base Prospectus, the Prospectus Supplement, the Prospectus or any
Permitted Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference, or deemed
to be incorporated by reference, therein pursuant to Item 6 of Form S-3 (the “Incorporated Documents”), including,
unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. For purposes of this
Agreement, all references to the Registration Statement, the Rule 462(b) Registration Statement, the Base Prospectus, the Prospectus
or any amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”). All references in this Agreement to financial
statements and schedules and other information which is “described,” “contained,” “included” or “stated”
in the Registration Statement, the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus (or other references of like
import) shall be deemed to mean and include all such financial statements and schedules and other information which is incorporated by
reference in or otherwise deemed by the Rules and Regulations to be a part of or included in the Registration Statement, the Base Prospectus,
the Prospectus or Permitted Free Writing Prospectus as the case may be. Any reference herein to the terms “amend,”
“amendment” or “supplement” with respect to the Registration Statement, any Base
Prospectus, the Prospectus, the Prospectus Supplement or any Permitted Free Writing Prospectus shall be deemed to refer to and include
the filing of any document under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively,
the “Exchange Act”) on or after the initial effective date of the Registration Statement, or the date of such
Base Prospectus, the Prospectus, the Prospectus Supplement or such Permitted Free Writing Prospectus, if any, as the case may be, and
incorporated or deemed to be incorporated therein by reference pursuant to Item 6 of Form S-3. “Time of Sale”
means each time a Share is purchased pursuant to this Agreement.
(ii)
(A) The Registration Statement complied when it became effective, complies as of the date hereof, and will comply upon the effectiveness
of any amendment thereto and at each Time of Sale and each Settlement Date (as applicable), in all material respects, with the requirements
of the Securities Act; at all times during which a prospectus is required by the Securities Act to be delivered (whether physically or
through compliance with Rule 172 under the Securities Act or any similar rule) in connection with any sale of Shares (the “Prospectus
Delivery Period”); the Registration Statement, as may be amended, will comply, in all material respects, with the requirements
of the Securities Act; the conditions to the use of Form S-3 in connection with the offering and sale of the Shares as contemplated hereby
(the “Offering”) have been satisfied; the Registration Statement meets, and the Offering complies with, the
requirements of Rule 415 under the Securities Act (including, without limitation, Rule 415(a)(5)); the Registration Statement did not,
as of the time of its effectiveness and as of the date hereof, and will not, as of the effective date of any amendment thereto, at each
Time of Sale, if any, and at all times during a Prospectus Delivery Period, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(B)
The Prospectus, as of the date of the Prospectus Supplement, as of the date hereof (if filed with the Commission on or prior to the date
hereof), at each Settlement Date and Time of Sale (as applicable), and at all times during a Prospectus Delivery Period, complied, complies
or will comply, in all material respects, with the requirements of the Securities Act; and the Prospectus, and each supplement thereto,
as of their respective dates, at each Settlement Date or Time of Sale (as applicable), and at all times during a Prospectus Delivery
Period, did 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.
(C)
Each Permitted Free Writing Prospectus, if any, as of its date and as of each Settlement Date and Time of Sale (as applicable), and at
all times during a Prospectus Delivery Period (when taken together with the Prospectus at such time) will not include an untrue statement
of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
The
representations and warranties set forth in subparagraphs (A), (B) and (C) above shall not apply to any statement contained in the Registration
Statement, any Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus in reliance upon and in conformity with information
concerning the Agent that is furnished in writing by or on behalf of the Agent expressly for use in the Registration Statement, such
Base Prospectus, the Prospectus or such Permitted Free Writing Prospectus, if any, it being understood and agreed that only such information
furnished by the Agent as of the date hereof consists of the information described in Section 5(b)(ii).
(iii)
Prior to the execution of this Agreement, the Company has not, directly or indirectly, offered or sold any Shares by means of any “prospectus”
(within the meaning of the Securities Act) or used any “prospectus” (within the meaning of the Securities Act) in connection
with the Offering, in each case other than the Base Prospectus or any Permitted Free Writing Prospectus; the Company has not, directly
or indirectly, prepared, used or referred to any Permitted Free Writing Prospectus except in compliance with Rules 164 and 433 under
the Securities Act; assuming that a Permitted Free Writing Prospectus, if any, is sent or given after the Registration Statement was
filed with the Commission (and after such Permitted Free Writing Prospectus, if any, was, if required pursuant to Rule 433(d) under the
Securities Act, filed with the Commission), the Company will satisfy the provisions of Rule 164 or Rule 433 necessary for the use of
a free writing prospectus (as defined in Rule 405) in connection with the Offering; the conditions set forth in one or more of subclauses
(i) through (iv), inclusive, of Rule 433(b)(1) under the Securities Act are satisfied, and the registration statement relating to the
Offering, as initially filed with the Commission, includes a prospectus that, other than by reason of Rule 433 or Rule 431 under the
Securities Act, satisfies the requirements of Section 10 of the Securities Act; neither the Company nor the Agent is disqualified, by
reason of subsection (f) or (g) of Rule 164 under the Securities Act, from using, in connection with the Offering, “free writing
prospectuses” (as defined in Rule 405 under the Securities Act) pursuant to Rules 164 and 433 under the Securities Act; the Company
is not an “ineligible issuer” (as defined in Rule 405 under the Securities Act) as of the eligibility determination date
for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Shares contemplated by the Registration
Statement; the parties hereto agree and understand that the content of any and all “road shows” (as defined in Rule 433 under
the Securities Act) related to the Offering is solely the property of the Company.
(iv)
Each Permitted Free Writing Prospectus, as of its issue date, each Time of Sale and each Settlement Date occurring after such issue date
and at all subsequent times through the Prospectus Delivery Period (as defined below) or until any earlier date that the Company notified
or notifies the Agent as described in Section 3(c)(iii), did not, does not and will not include any information that conflicted,
conflicts or will conflict with the information contained in the Registration Statement, any Base Prospectus or the Prospectus. The foregoing
sentence does not apply to statements in or omissions from any Permitted Free Writing Prospectus based upon and in conformity with written
information furnished to the Company by the Agent specifically for use therein, it being understood and agreed that only such information
furnished by the Agent as of the date hereof consist of the information described in Section 5(b)(ii).
(v)
The consolidated financial statements of the Company and the Subsidiaries (as defined below), together with the related notes, set forth
or incorporated by reference in the Registration Statement and the Prospectus comply in all material respects with the requirements of
the Securities Act and the Exchange Act and fairly present in all material respects the financial condition of the Company and the Subsidiaries,
as a whole, as of the dates indicated and the results of operations and changes in cash flows for the periods therein specified in conformity
with U.S. generally accepted accounting principles consistently applied throughout the periods involved. The selected financial data
and the summary financial information included in the documents in the Registration Statement and in the Prospectus constitute a fair
summary of the information purported to be summarized and have been compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement. No other financial statements or supporting schedules are required to be included
or incorporated by reference in the Registration Statement or the Prospectus under the Securities Act except as so included or incorporated
by reference. All disclosures contained in the Registration Statement or the Prospectus or incorporated by reference therein regarding
“non GAAP financial measures” (as such term is defined by the applicable rules and regulations of the Commission) comply
with Regulation G of the Exchange Act and Item 10 of Regulation S-K of the Securities Act to the extent applicable. To the Company’s
knowledge, Marcum LLP, which has expressed its opinion with respect to the audited financial statements for the fiscal year ended June
30, 2021 and June 30, 2022, and has reviewed the unaudited financial statements for the three months ended September 30, 2020 (the audited
financial statements for the fiscal year ended June 30, 2022 and the unaudited financial statements for the three months ended September
30, 2022, collectively, the “Incorporated Financial Statements”), filed as a part of the Registration Statement and included
in the Registration Statement and the Prospectus, is a registered public accounting firm within the meaning of the Securities Act, and
Marcum LLP, in the performance of its work for the Company, has not been in violation of the auditor independence requirements of the
Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”).
(vi)
The Company has been duly organized and is validly existing as a corporation under the laws of its jurisdiction of incorporation. The
Company and each of the Subsidiaries has full corporate power and authority to own its respective properties and conduct its business
as currently being carried on and as described in the Registration Statement and the Prospectus, and is duly qualified to do business
as a foreign corporation in good standing in each jurisdiction in which it owns or leases real property or in which the conduct of its
business makes such qualification necessary and in which the failure to so qualify would have a material adverse effect upon the results
of operations, business, management, properties, prospects, conditions (financial or otherwise) or operations, of the Company and the
Subsidiaries, either individually or taken as a whole (“Material Adverse Effect”).
(vii)
Except as disclosed in the Prospectus, subsequent to the dates as of which information is given in the Prospectus, the Company (including
its Subsidiaries on a consolidated basis) has not incurred any material liabilities or obligations, direct or contingent, or entered
into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to the capital stock
of the Company; and there has not been any change in the capital stock of the Company, or issuance of options, warrants, convertible
securities or other rights to purchase the capital stock of the Company, or any material change in the short-term or long-term debt of
the Company (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in the Prospectus),
or any Material Adverse Effect or any development that would reasonably be expected to result in a Material Adverse Effect. Since the
date of the latest balance sheet presented in the Registration Statement and the Prospectus, neither the Company nor any Subsidiary has
entered into any transactions, including any acquisition or disposition of any business or asset, which are material to the Company and
the Subsidiaries taken as a whole, except for transactions which are disclosed in the Registration Statement and the Prospectus.
(viii)
Except as set forth in the Prospectus, there is not pending or, to the knowledge of the Company, threatened or contemplated, any action,
suit or proceeding to which the Company or any of its Subsidiaries or of which any property or assets of the Company or any of its Subsidiaries
is the subject before or by any court or governmental agency, authority or body, or any arbitrator or mediator, which, individually or
in the aggregate, would reasonably be expected to result in any Material Adverse Effect.
(ix)
There are no statutes, regulations, contracts or documents that are required to be described in the Registration Statement and the Prospectus
or be filed as exhibits to the Registration Statement by the Securities Act that have not been so described or filed.
(x)
This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid, legal and binding obligation
of the Company, enforceable against the Company in accordance with its terms, except as rights to indemnity hereunder may be limited
by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar
laws affecting the rights of creditors generally and subject to general principles of equity. The execution, delivery and performance
of this Agreement and the consummation of the transactions herein contemplated will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, (i) any law, rule or regulation to which the Company or any of its Subsidiaries
is subject, (ii) any agreement or instrument to which the Company or any of its Subsidiaries or by which it is bound or to which any
of its property is subject, (iii) the Company’s Articles of Incorporation or Bylaws, each as amended, or the organizational documents
of any of its Subsidiaries, or (iv) any order, rule, regulation or decree of any court or governmental agency or body having jurisdiction
over the Company or any of its Subsidiaries or any of its properties, except, in the case of clauses (i), (ii) and (iv), for such breaches,
violations or defaults that would not reasonably be expected to result in a Material Adverse Effect; no consent, approval, authorization
or order of, or filing with, any court or governmental agency or body is required for the execution, delivery and performance of this
Agreement or for the consummation of the transactions contemplated hereby and thereby, including the issuance or sale of the Shares by
the Company, except for such consents, approvals, authorizations, orders or filings as have been obtained or made or as may be required
under the Securities Act or state securities or blue sky laws; and the Company has and will have full power and authority to enter into
this Agreement and to authorize, issue and sell the Shares as contemplated hereby and thereby.
(xi)
All of the issued and outstanding shares of capital stock of the Company, including the outstanding Common Stock, are duly authorized
and validly issued, fully paid and nonassessable, have been issued in compliance with all applicable foreign, federal and state securities
laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that
have not been waived in writing, and the holders thereof are not subject to personal liability by reason of being such holders; all of
the issued and outstanding shares of capital stock of each of the Subsidiaries are duly authorized and validly issued, fully paid and
nonassessable, and are owned by the Company, directly or through wholly-owned Subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity except for those arising under any credit facility or loan agreement (“Credit
Facilities”) to which the Company or any of its Subsidiaries is a party or their assets are bound as disclosed in the Registration
Statement and the Prospectus, have been issued in compliance with all applicable foreign, federal and state securities laws, were not
issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been
waived in writing, and the holders thereof are not subject to personal liability by reason of being such holders; the Shares which may
be sold under this Agreement by the Company have been duly authorized and, when issued, delivered and paid for in accordance with the
terms of this Agreement will have been validly issued and will be fully paid and nonassessable, and the holders thereof will not be subject
to personal liability solely by reason of being such holders; and the capital stock of the Company, including the Common Stock, conforms
in all material respects to the description thereof in the Registration Statement and the Prospectus. Except as otherwise stated in the
Registration Statement and the Prospectus, there are no preemptive rights or other rights to subscribe for or to purchase, or any restriction
upon the voting or transfer of, any Common Stock pursuant to the Company’s Articles of Incorporation, as amended, or any agreement
or other instrument to which the Company is a party or by which the Company is bound. Neither the filing of the Registration Statement
nor the Offering gives rise to any rights for or relating to the registration of any Common Stock or other securities of the Company,
except for such registration rights as have been duly waived. Except as described in the Registration Statement and the Prospectus, there
are no options, warrants, agreements, contracts or other rights in existence to purchase or acquire from the Company any shares of the
capital stock of the Company. The Company has an authorized and outstanding capitalization as set forth in the Registration Statement
and the Prospectus as of the dates set forth therein.
(xii)
The Company and each of its Subsidiaries holds, and is operating in compliance with all grants, authorizations, licenses, permits, consents,
certificates and orders of any governmental or self-regulatory body required for the conduct of its respective businesses and all such
grants, authorizations, licenses, permits, consents, certifications and orders are valid and in full force and effect, except for such
noncompliance or failures to be in full force and effect that would not reasonably be expected to result in a Material Adverse Effect;
and neither the Company nor any of its Subsidiaries has received notice of any revocation or modification of any such grant, authorization,
license, permit, consent, certification or order or has reason to believe that any such grant, authorization, license, permit, consent,
certification or order will not be renewed in the ordinary course; and the Company and each of its Subsidiaries is in compliance with
all applicable federal, state, local and foreign laws, regulations, orders and decrees, except for such noncompliance that would not
reasonably be expected to result in a Material Adverse Effect. No approval, authorization, consent or order of or filing with any foreign,
federal, state or local governmental or regulatory commission, board, body, authority or agency is required in connection with the issuance
and sale of the Shares or the consummation by the Company of the transactions contemplated hereby, other than (i) registration of the
Shares under the Securities Act, (ii) any necessary qualification under the securities or blue sky laws of the various jurisdictions
in which the Shares are being offered by the Agent, (iii) the filing of any reports under the Exchange Act, (iv) such approvals as may
be required by the Conduct Rules of the Financial Industry Regulatory Authority, Inc. (“FINRA”), (v) approval
of the listing of the Shares by the NASDAQ Capital Market or (vi) such approvals as have been obtained or made as of the Time of Sale.
(xiii)
The Company and each of its Subsidiaries has good and marketable title to all property (whether real or personal) described in the Registration
Statement and the Prospectus as being owned by it, in each case free and clear of all liens, claims, security interests, other encumbrances
or defects except such as are described in the Registration Statement and the Prospectus, except as would not materially impair the use
or value thereof. The property held under lease by the Company and each of its Subsidiaries is held by it under valid, subsisting and
enforceable leases with only such exceptions with respect to any particular lease as do not interfere in any material respect with the
conduct of the business of the Company or such Subsidiary.
(xiv)
The Company and each of its Subsidiaries owns, possesses, or can acquire on reasonable terms, all Intellectual Property (as defined below)
necessary for the conduct of their respective businesses as now conducted or as described in the Registration Statement and the Prospectus
to be conducted. Except as would not result in a Material Adverse Effect, (A) there are no rights of third parties to any such Intellectual
Property owned by the Company, except as otherwise disclosed to the Agent in writing by the Company prior to the date hereof; (B) to
the knowledge of the Company, there is no infringement, misappropriation or violation by third parties of any such Intellectual Property;
(C) there is no pending or, to the knowledge of the Company, threatened, action, suit, proceeding or claim by others challenging the
Company’s or any Subsidiary’s rights in or to any such Intellectual Property, and the Company is unaware of any facts which
would form a reasonable basis for any such claim; (D) the Intellectual Property owned by the Company and each of the Subsidiaries, and
to the knowledge of the Company, the Intellectual Property licensed to the Company, each of the Subsidiaries, has not been adjudged invalid
or unenforceable, in whole or in part, and there is no pending or, to the knowledge of the Company, threatened action, suit, proceeding
or claim by others challenging the validity or scope of any such Intellectual Property, and the Company is unaware of any facts which
would form a reasonable basis for any such claim; (E) there is no pending or, to the knowledge of the Company, threatened action, suit,
proceeding or claim by others that the Company or any of its Subsidiaries infringes, misappropriates or otherwise violates any Intellectual
Property or other proprietary rights of others, and neither the Company nor any of the Subsidiaries has received any written notice of
such claim; and (F) to the Company’s knowledge, or except as described in the Prospectus, no employee of the Company or any of
its Subsidiaries is in or has ever been in violation 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 any of its Subsidiaries or
actions undertaken by the employee while employed with the Company or any of its Subsidiaries. “Intellectual Property”
shall mean all patents, patent applications, trade and service marks, trade and service mark registrations, trade names, copyrights,
licenses, inventions, trade secrets, domain names, technology, know-how and other intellectual property.
(xv)
Neither the Company nor any of its Subsidiaries is (A) in violation of its articles of incorporation or similar organizational documents,
or (B) in breach of or otherwise in default, and no event has occurred which, with notice or lapse of time or both, would constitute
such a default in the performance of any material obligation, agreement or condition contained in any bond, debenture, note, indenture,
loan agreement, mortgage, deed of trust or any other material contract, lease or other instrument to which it is subject or by which
any of them may be bound, or to which any of the material property or assets of the Company or any of its Subsidiaries is subject (collectively,
the “Material Contracts”); or (C) in violation of any law or statute or any judgment, order, rule or regulation
of any court or arbitrator or governmental or regulatory authority, except in the case of (B) and (C) above, as could not, individually
or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
(xvi)
The Company and each of the Subsidiaries has timely filed all applicable federal, state, local, foreign and other income and franchise
tax returns required to be filed and are not in default in the payment of any taxes which were payable pursuant to said returns or any
assessments with respect thereto, other than any which the Company or any of its Subsidiaries is contesting in good faith. There is no
pending dispute with any taxing authority relating to any of such returns, and the Company has no knowledge of any proposed liability
for any tax to be imposed upon the properties or assets of the Company or any of its Subsidiaries for which there is not an adequate
reserve reflected in the Company’s financial statements included in the Registration Statement. There are no documentary, stamp
or other issuance or transfer taxes or duties or similar fees or charges under U.S. federal law or the laws of any U.S. state, required
to be paid in connection with the execution and delivery of this Agreement or the issuance, sale and delivery by the Company of the Shares.
(xvii)
The Company has not distributed and will not distribute any prospectus or other offering material in connection with the Offering other
than the Registration Statement and the Prospectus or other materials permitted by the Securities Act to be distributed by the Company;
provided, however, that the Company has not made and will not make any offer relating to the Shares that would constitute a “free
writing prospectus” as defined in Rule 405 under the Securities Act, except in accordance with the provisions of Section 3(p)
of this Agreement.
(xviii)
The issuance and sale of the Shares as contemplated in this Agreement does not contravene the rules and regulations of the NASDAQ Capital
Market. The Common Stock are registered pursuant to Section 12(b) of the Exchange Act and are listed on the NASDAQ Capital Market and
the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under
the Exchange Act or delisting the Common Stock from the NASDAQ Capital Market nor, except as disclosed in the Registration Statement
or the Prospectus, has the Company received any notification that the Commission or the NASDAQ Capital Market is contemplating terminating
such registration or listing. The Company has complied in all material respects with the applicable requirements of the NASDAQ Capital
Market for maintenance of the listing of the Common Stock thereon. The Company has filed an application to include the Shares on the
NASDAQ Capital Market.
(xix)
The Company has no subsidiaries other than those set forth on Schedule 1(a)(xix)1 (collectively, the “Subsidiaries”).
The Company does not own, directly or indirectly, any shares of stock or any other equity or long-term debt securities of any other corporation
or have any equity interest in any other corporation, partnership, joint venture, association, trust or other entity.
(xx)
The Company and each of its Subsidiaries have established and maintain systems of internal accounting controls sufficient to provide
reasonable assurances that (A) transactions are executed in accordance with management’s general or specific authorization; (B)
transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (C) access to assets is permitted only in accordance with management’s general
or specific authorization; and (D) amounts reflected on the Company’s consolidated balance sheet for assets are compared with existing
assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as described in the Registration
Statement and the Prospectus, since the filing of the annual report on Form 10-K for the fiscal year ended June 30, 2022, there has been
(i) no new material weakness identified to the Company’s board of directors (or committee thereof) in the Company’s internal
control over financial reporting (whether or not remediated) and (ii) 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.
1
NTD: several of the Company’s subsidiaries disclosed in its 10-K have been dissolved or are in the process of being dissolved.
(xxi)
Except as described in the Registration Statement or the Prospectus, the Company and each of the Subsidiaries: (A) is and at all times
since January 1, 2021 has been in material compliance with all United States (federal, state and local) and foreign statutes, rules,
regulations, treaties, or guidance applicable to the Company or the Subsidiaries (“Applicable Laws”); (B) since
January 1, 2021 has not received any notice of adverse finding, warning letter, untitled letter or other correspondence or notice from
any Governmental Authority (as defined below) alleging or asserting noncompliance with any Applicable Laws or any licenses, certificates,
approvals, clearances, authorizations, permits and supplements or amendments thereto required by any such Applicable Laws (“Authorizations”);
(C) since January 1, 2021 has not received notice of any claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration
or other action from any Governmental Authority 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 Authority or third party intends to assert any such
claim, litigation, arbitration, action, suit, investigation or proceeding; (D) since January 1, 2021 has not received notice that any
Governmental Authority has taken, is taking or intends to take action to limit, suspend, modify or revoke any Authorizations and the
Company has no knowledge that any such Governmental Authority is considering such action; and (E) has filed, obtained, maintained or
submitted all material reports, documents, forms, 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). “Governmental Authority” means any federal, provincial, state, local,
foreign or other governmental or quasi-governmental agency or body or any other type of regulatory authority or body, including, without
limitation, the NASDAQ Capital Market. The aggregate of all pending legal or governmental proceedings to which the Company or any Subsidiary
is a party or of which any of their respective property or assets is the subject which are not described in the Registration Statement
and the Prospectus, including ordinary routine litigation incidental to the business, would not result in a Material Adverse Effect.
(xxii)
Other than as contemplated by this Agreement, the Company has not incurred any liability for any finder’s or broker’s fee
or agent’s commission in connection with the execution and delivery of this Agreement or the consummation of the transactions contemplated
hereby. The Company has not entered into any other sales agency agreements or other similar arrangements with any agent or any other
representative in respect of “at the market” offerings of the Shares in accordance with Rule 415 under the Securities Act.
(xxiii)
The Company and each of the Subsidiaries carries, or is covered by, insurance in such amounts and covering such risks the Company reasonably
believes are adequate for the conduct of its respective business and the value of its properties and as is customary for companies engaged
in similar businesses in similar industries; all policies of insurance and any fidelity or surety bonds insuring the Company, each of
its Subsidiaries and their respective businesses, assets, employees, officers and directors are in full force and effect; the Company
and each of its Subsidiaries is in compliance with the terms of such policies and instruments in all material respects; there are no
claims by the Company or any of the Subsidiaries under any such policy or instrument as to which any insurance company is denying liability
or defending under a reservation of rights clause; neither the Company nor any of the Subsidiaries has been refused any insurance coverage
sought or applied for; and the Company has no reason to believe that it will not be able to renew its existing insurance coverage as
and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a
cost that would not have a Material Adverse Effect.
(xxiv)
The Company is not (and is not an affiliate of), and immediately after receipt of payment for the Shares, will not be (and will not be
an affiliate of), an “investment company” within the meaning of the Investment Company Act of 1940, as amended. The Company
currently intends to conduct its business in a manner so that it will not become subject to the Investment Company Act of 1940, as amended.
(xxv)
The Incorporated Documents, at the time they were or hereinafter are filed with the Commission, conformed and will conform in all material
respects to the requirements of the Securities Act and the Exchange Act, and were filed on a timely basis with the Commission and no
Incorporated Document contained or will contain an untrue statement of a material fact or omitted to state a material fact necessary
to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that, no representation
is made herein regarding the representations, warranties and covenants, or any descriptions thereof, contained in any agreements or documents
included as exhibits to the Incorporated Documents. There is no material document required to be described in the Registration Statement
or the Prospectus or to be filed as an exhibit to the Registration Statement which was not described or filed as required. All material
agreements of the Company and all agreements governing or evidencing any and all related party transactions have been filed with the
Commission to the extent required and applicable under the Exchange Act. Neither the Company nor any Subsidiaries has sent or received
any communication regarding termination of, or intent not to renew, any of the contracts or agreements referred to or described in the
Registration Statement and the Prospectus, or referred to or described in, or filed as an exhibit to, the Registration Statement or any
Incorporated Document, and no such termination or non-renewal has been threatened by the Company or any of its Subsidiaries or, to the
Company’s knowledge, any other party to any such contract or agreement. Any descriptions of the terms of any of the foregoing contracts
and agreements that are contained in the Registration Statement and the Prospectus are accurate and complete in all material respects.
(xxvi)
The Company is in compliance in all material respects with all applicable provisions of the Sarbanes-Oxley Act and the rules and regulations
of the Commission thereunder.
(xxvii)
Except as described in the Registration Statement and the Prospectus, the Company has established and maintains disclosure controls and
procedures (within the meaning of Rule 13a-15(e) of the Exchange Act) and such controls and procedures are designed to ensure that information
required to be disclosed in the reports that the Company files or submits under the Exchange Act is recorded, processed, summarized and
reported within the time periods specified in the rules and forms of the Commission and that such information is accumulated and communicated
to the Company’s management, including its Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely
decisions regarding required disclosure. The Company has utilized such controls and procedures in preparing and evaluating the disclosures
in the Registration Statement and the Prospectus.
(xxviii)
To the knowledge of the Company, neither the Company, the Subsidiaries, nor any director, officer, agent, employee or affiliate of the
Company or any Subsidiary, has taken any action directly or indirectly, that would result in a violation by such persons of the FCPA
(as defined below), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly
in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to
give, or authorization of the giving of anything of value to any “Foreign official” (as such term is defined in the FCPA)
or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA, and the
Company and each of its Subsidiaries has conducted its business in compliance with the FCPA and has instituted and maintains policies
and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith. “FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.
(xxix)
The Company and each of its Subsidiaries have complied in all material respects with the money laundering statutes of applicable jurisdictions,
the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by
applicable governmental agencies (collectively, the “Money Laundering Laws”), and no action, suit or proceeding
by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its Subsidiaries with
respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(xxx)
Neither the Company, any of its Subsidiaries, nor, to the knowledge of the Company, any director, officer, employee, representative,
agent, or affiliate of the Company or any of its Subsidiaries is currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Department of the Treasury.
(xxxi)
No transaction has occurred or agreement or understanding entered into between or among the Company or any of its Subsidiaries on the
one hand, and any officer, director or 5% or greater stockholder of the Company or any Subsidiary of the Company or any affiliate or
affiliates of any such officer, director or 5% or greater stockholder that is required to be described that is not so described in the
Registration Statement and the Prospectus. Neither the Company nor any of its Subsidiaries has, directly or indirectly, extended or maintained
credit, or arranged for the extension of credit, or renewed an extension of credit, in the form of a personal loan to or for any of its
directors or executive officers in violation of applicable laws, including Section 402 of the Sarbanes-Oxley Act.
(xxxii)
(a) Neither the Company nor any of its Subsidiaries is in violation of any applicable international, national, state or local convention,
law, regulation, order, governmental license, convention, treaty (including those promulgated by the International Maritime Organization)
or other requirement relating to pollution or protection of human health or safety (as they relate to exposure to Materials of Environmental
Concern (as defined below)) or protection of the environment (including, without limitation, ambient air, surface water, groundwater,
land surface or subsurface strata) or protection of natural resources, including without limitation, conventions, laws or regulations
relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum, petroleum products or other hydrocarbons (collectively, “Materials of Environmental Concern”),
or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Materials
of Environmental Concern (collectively, “Environmental Laws”), nor has the Company or any Subsidiary received
any written communication, whether from a Governmental Authority, citizens group, employee or otherwise, that alleges that the Company
or any such Subsidiary is in violation of any Environmental Law or governmental license required pursuant to Environmental Law; except,
in each case, as would not, individually or in the aggregate, have a Material Adverse Effect; (b) there is no claim, action or cause
of action filed with a court or Governmental Authority and no investigation, or other action with respect to which the Company or any
Subsidiary has received written notice alleging potential liability for investigatory costs, cleanup costs, governmental response costs,
natural resources damages, property damages, personal injuries, attorneys’ fees or penalties arising out of, based on or resulting
from the presence, or release into the environment, of any Material of Environmental Concern at any location owned, leased or operated
by the Company or any Subsidiary, now or in the past, or from any vessel owned, leased or operated by the Company or any Subsidiary,
now or in the past (collectively, “Environmental Claim”), pending or, to the knowledge of the Company, threatened
against the Company or any Subsidiary or any person or entity whose liability for any Environmental Claim the Company or any Subsidiary
has retained or assumed either contractually or by operation of law, except as would not, individually or in the aggregate, have a Material
Adverse Effect; (c) to the knowledge of the Company, there are no past or present actions, activities, circumstances, conditions, events
or incidents, including, without limitation, the release, emission, discharge, presence or disposal of any Material of Environmental
Concern, that reasonably would be expected to result in a violation of any Environmental Law, require expenditures to be incurred pursuant
to Environmental Law, or form the basis of an Environmental Claim against the Company, any Subsidiary or against any person or entity
whose liability for any Environmental Claim the Company or any Subsidiary has retained or assumed either contractually or by operation
of law, except as would not, individually or in the aggregate, have a Material Adverse Effect (for the avoidance of doubt, the operation
of vessels in the ordinary course of business shall not be deemed, by itself, an action, activity, circumstance or condition set forth
in this clause (c)); and (d) none of the Company or any Subsidiary is subject to any pending proceeding under Environmental Law to which
a Governmental Authority is a party and which the Company reasonably believes is likely to result in monetary sanctions of US$100,000
or more. The Company has reasonably concluded that any existing compliance and remediation costs and liabilities arising under Environmental
Laws and resulting from the business, operations or properties of the Company or any Subsidiary would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the
Prospectus. In the ordinary course of its business, the Company conducts a periodic review of the effect of Environmental Laws on the
business, operations and properties of the Company and the Subsidiaries, in the course of which it identifies and evaluates associated
costs and liabilities (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties
or compliance with Environmental Laws or any permit, license or approval, any related constraints on operating activities and any potential
liabilities to third parties). No facts or circumstances have come to the Company’s attention that could result in costs or liabilities
that could be expected, individually or in the aggregate, to have a Material Adverse Effect.
(xxxiii)
The Company and each of the Subsidiaries (A) is in compliance, in all material respects, with applicable foreign, federal, state and
local laws, rules, regulations, statutes and codes promulgated by applicable governmental authorities (including pursuant to the Occupational
Health and Safety Act) relating to the protection of human health and safety in the workplace (“Occupational Laws”);
(B) has received all material permits, licenses or other approvals required of it under applicable Occupational Laws to conduct its business
as currently conducted; and (C) is in compliance, in all material respects, with all terms and conditions of such permit, license or
approval. No action, proceeding, revocation proceeding, writ, injunction or claim is pending or, to the Company’s knowledge, threatened
against the Company or any of its Subsidiaries relating to Occupational Laws, and the Company does not have knowledge of any facts, circumstances
or developments relating to its operations or cost accounting practices that could reasonably be expected to form the basis for or give
rise to such actions, suits, investigations or proceedings.
(xxxiv)
No material labor problem or dispute with the employees of the Company or any of its Subsidiaries exists or, to the knowledge of the
Company, is threatened or imminent.
(xxxv)
The Company has not, and to its knowledge no one acting on its behalf has, (a) taken, directly or indirectly, any action designed to
cause or to result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale
of any of the Shares, (b) sold, bid for, purchased, or paid any compensation for soliciting purchases of, any of the Shares or (c) paid
or agreed to pay to any person any compensation for soliciting another to purchase any other securities of the Company, other than, in
the case of clauses (b) and (c), compensation paid to the Agent in connection with the sale of the Shares.
(xxxvi)
Other than the Agent, no person or entity has the right to act as a placement agent, underwriter or as a financial advisor in connection
with the sale of the Shares contemplated hereby, and the Company is not a party to any agreement with an agent or underwriter for any
other “at the market” offering or continuous equity transaction.
(xxxvii)
There is no transaction, arrangement or other relationship between the Company or any of its Subsidiaries and an unconsolidated or other
off balance sheet entity that is required to be disclosed by the Company in the Registration Statement or the Prospectus and is not so
disclosed or that otherwise could be reasonably likely to have a Material Adverse Effect.
(xxxviii)
None of the Company, its Subsidiaries, or any of their respective affiliates, nor any person or entity acting on their behalf (excluding
the Agent) 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 transactions contemplated by this Agreement to require approval of stockholders of the Company under any applicable
stockholder approval provisions, including, without limitation, under the rules and regulations of the NASDAQ Capital Market. None of
the Company, its Subsidiaries, their affiliates nor any person or entity acting on their behalf will take any action or steps that would
cause the offering of any of the Shares to be integrated with other offerings of securities of the Company.
(xxxix)
Any statistical and market-related data included in the Registration Statement and the Prospectus are based on or derived from sources
that the Company believes to be reliable and accurate and, to the extent required, the Company has obtained the written consent to the
use of such data from such sources.
(xl)
The Registration Statement is not the subject of a pending proceeding or examination under Section 8(d) or 8(e) of the Securities Act,
and the Company is not the subject of a pending proceeding under Section 8A of the Securities Act in connection with the offering of
the Shares.
(xli)
Except as set forth in the Registration Statement or the Prospectus, the Company and its board of directors have taken all necessary
action, if any, in order to render inapplicable any control share acquisition, business combination, poison pill (including any distribution
under a rights agreement) or other similar anti-takeover provision under the Company’s Articles of Incorporation, as amended, or
the laws of the State of Nevada that is or could become applicable to the purchasers of the Shares.
(xlii)
There are no affiliations with any FINRA member firm among the Company’s officers, directors or, to the knowledge of the Company,
any five percent (5%) or greater stockholder of the Company, except as set forth in the Registration Statement or the Prospectus.
(xliii)
Neither the Company nor any Subsidiary or any of their respective properties or assets has any immunity from the jurisdiction of any
court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution or otherwise)
under the laws of the United States or any political subdivisions thereof.
(xliv)
The Company is not a “foreign private issuer” as defined in Rule 405 promulgated under the Securities Act.
(xlv)
The Company did not qualify as a “passive foreign investment company” within the meaning of Section 1297 of the United States
Internal Revenue Code of 1986, as amended, for its most recently completed taxable year, if any.
(xlvi)
Each “forward-looking statement” (within the meaning of Section 27A of the Securities Act or Section 21E of the Exchange
Act) contained in the Registration Statement and the Prospectus has been made or reaffirmed with a reasonable basis and has been disclosed
in good faith.
(xlvii)
The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement fairly
presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and
guidelines applicable thereto.
(b)
Any certificate signed by any officer of the Company and delivered to the Agent or the Agent’s counsel shall be deemed a representation
and warranty by the Company to the Agent as to the matters covered thereby.
(c)
At each Bringdown Date (as defined herein) and each Time of Sale, the Company shall be deemed to have affirmed each representation and
warranty contained in or made pursuant to this Agreement as of such date as though made at and as of such date (except that such representations
and warranties shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented relating to such
Shares on such date).
2.
Purchase, Sale and Delivery of Shares.
(a)
At the Market Sales. On the basis of the representations, warranties and agreements herein the Company agrees that, from time
to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through
the Agent, acting as sales agent, the Shares up to an aggregate offering price of US$7,186,257; provided, however, that in no event shall
the Company issue or sell through the Agent such number of Shares that (a) exceeds the number or dollar amount of Common Stock registered
on the Registration Statement, pursuant to which the Offering is being made, (b) exceeds the number of authorized but unissued Common
Stock or (c) would cause the Company or the offering of the Shares to not satisfy the eligibility and transaction requirements for use
of Form S-3 (including, if applicable, General Instruction I.B.6 of Form S-3 (the lesser of (a), (b) and (c), the “Maximum
Amount”)). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the
limitations set forth in this Section 2(a) on the number and aggregate sales price of Shares issued and sold under this Agreement
shall be the sole responsibility of the Company and that Agent shall have no obligation in connection with such compliance. Notwithstanding
the foregoing, the Company agrees that it will provide the Agent with written notice no less than one (1) business day prior to the date
on which it makes the initial sale of Shares under this Agreement. As used herein, the terms “business day”
means any day (other than Saturday, Sunday or any federal holiday in the United States) in which commercial banks in New York, New York
are open for business.
(i)
For purposes of selling the Shares through the Agent, the Company hereby appoints the Agent as exclusive agent of the Company for the
purpose of soliciting purchases of the Shares from the Company pursuant to this Agreement and the Agent agrees to use its commercially
reasonable efforts to sell the Shares on the terms and subject to the conditions stated herein.
(ii)
Each time the Company wishes to issue and sell the Shares hereunder (each, a “Transaction”), it will notify
the Agent by telephone (confirmed promptly by facsimile or e-mail to the appropriate individual listed on Schedule D hereto, using
a form substantially similar to that set forth on Schedule C hereto (a “Transaction Notice”) as to the
maximum number of Shares to be sold by the Agent on such day and in any event not in excess of the amount available for issuance under
the Prospectus and the currently effective Registration Statement, the time period during which sales are requested to be made, any limitation
on the number of shares that may be sold in any one Trading Day (as defined below), and any minimum price below which sales may not be
made. The Transaction Notice shall originate from any of the individuals from the Company set forth on Schedule B (with a copy
to each of the other individuals from the Company listed on such Schedule), and shall be addressed to each of the individuals from the
Agent set forth on Schedule D, as such Schedule D may be amended from time to time. Subject to the terms and conditions
hereof and unless the sale of the Shares described therein has been declined, suspended, or otherwise terminated in accordance with the
terms of this Agreement, the Agent shall promptly acknowledge the Transaction Notice by facsimile or e-mail (or by some other method
mutually agreed to in writing by the parties) and shall use its commercially reasonable efforts to sell all of the Shares so designated
by the Company in, and in accordance with the terms set forth in, the Transaction Notice; provided, however, that any obligation of the
Agent to use such commercially reasonable efforts shall be subject to the continuing accuracy of the representations and warranties of
the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional
conditions specified in Section 4 of this Agreement. The gross sales price of the Shares sold under this Section 2(a) shall
be equal to the market price for the Common Stock sold by the Agent under this Section 2(a) on the NASDAQ Capital Market at the
time of such sale. For the purposes hereof, “Trading Day” means any day on which Common Stock are purchased
and sold on the principal market on which the Common Stock are listed or quoted.
(iii)
The Company or the Agent may, upon notice to the other party hereto by telephone (confirmed promptly by facsimile or e-mail to the respective
individuals of the other party set forth on Schedule D hereto, which confirmation shall be promptly acknowledged by the other
party), suspend the Offering for any reason and at any time, whereupon the Agent shall so suspend the offering of Shares until further
notice is provided by the other party to the contrary; provided, however, that such suspension or termination shall not
affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the receipt by the Agent
of such notice. Each of the parties agrees that no such notice under this Section 2(a)(iii) shall be effective against the other
unless it is made to one of the individuals named on Schedule D hereto, as such Schedule may be amended from time to time.
(iv)
The Company acknowledges and agrees that (A) there can be no assurance that the Agent will be successful in selling the Shares, (B) the
Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other
than a failure by the Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable
law and regulations to sell such Shares as required under this Agreement, and (C) the Agent shall be under no obligation to purchase
shares on a principal basis pursuant to this Agreement.
(v)
The Agent may sell Shares by any method permitted by law to be an “at the market offering” as defined in Rule 415 under the
Securities Act, including, without limitation, sales made directly on the NASDAQ Capital Market, on any other existing trading market
for the Common Stock or to or through a market maker. The Agent may also sell Shares in privately negotiated transactions (which, for
the avoidance of doubt, shall not include block trades initiated on the NASDAQ Capital Market) with the Company’s prior written
approval.
(vi)
The compensation to the Agent for sales of the Shares, as an agent of the Company, shall be a cash transaction fee equal to three percent
(3.0%) (the “Transaction Fee”) of the gross sales price of all of Shares sold pursuant to this Section 2(a)
. The remaining proceeds, after further deduction for any transaction or other fees imposed by any governmental or self-regulatory
organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required.
In addition, to the extent not memorialized in any separate agreement between the Company and the Agent, the Agent shall be entitled
to a Transaction Fee with respect to any public or private offering or other financing or capital-raising transactions of the Company
or any Subsidiary to the extent such financing or capital is provided to the Company or any such Subsidiary by investors or lenders introduced
to the Company by the Agent during the term of this Agreement (an “Alternative Transaction”), but only if such
Alternative Transaction is closed during the term of this Agreement. In addition, the Company grants the Agent the right of first refusal
during the term of this Agreement to act as sole and exclusive investment banker, sole and exclusive book-runner, sole and exclusive
financial advisor, sole and exclusive underwriter and/or sole and exclusive placement agent, at the Agent’s sole and exclusive
discretion, with respect to a transaction solely to the extent such transaction is conducted pursuant to a prospectus supplement to the
Form S-3 (File No. 333-252370) that was initially declared effective by the Commission on February 5, 2021 (a “ROFR Transaction”).
The Company shall provide written notice to the Agent with the terms of the ROFR Transaction and if the Agent fails to accept in writing
any such proposal within ten (10) Business Days after receipt of such written notice, then the Agent will have no claim or right with
respect to such ROFR Transaction; provided, that any such election by the Agent shall not adversely affect the Agent’s right of
first refusal with respect to any other ROFR Transaction.
(vii)
The Agent shall provide written confirmation (which may be by facsimile or electronic mail) to the Company following the close of trading
on the Nasdaq Capital Market each day in which the Shares are sold under this Section 2(a) setting forth the number of the Shares
sold on such day, the aggregate gross sale proceeds, the Net Proceeds to the Company, and the compensation payable by the Company to
the Agent with respect to such sales.
(viii)
All Shares sold pursuant to this Section 2(a) will be delivered by the Company to Agent for the accounts of the Agent on the second
full business day following the date on which such Shares are sold, or at such other time and date as Agent and the Company determine
pursuant to Rule 15c6-1(a) under the Exchange Act, each such time and date of delivery being herein referred to as a “Settlement
Date.” On each Settlement Date, the Shares sold through the Agent for settlement on such date shall be issued and delivered
by the Company to the Agent against payment of the Net Proceeds from the sale of such Shares. Settlement for all such Shares shall be
effected by free delivery of the Shares by the Company or its transfer agent (i) to the Agent or its designee’s account (provided
the Agent shall have given the Company written notice of such designee prior to the Settlement Date) at The Depository Trust Company
(“DTC”) or (ii) by such other means of delivery as may be mutually agreed upon by the parties hereto, which
in all cases (provided that such Shares were sold pursuant to the Registration Statement) shall be freely tradable, transferable, registered
shares in good deliverable form, in return for payment in same day funds delivered to an account designated by the Company. If the Company
or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall
(A) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company
and (B) pay the Agent any commission to which it would otherwise be entitled absent such default against payment of the Net Proceeds
therefor by wire transfer of same day funds payable to the order of the Company at 9:00 a.m. New York City time. If the Agent breaches
this Agreement by failing to deliver the Net Proceeds on any Settlement Date for the shares delivered by the Company, the Agent will
pay the Company interest based on the effective prime rate until such proceeds, together with such interest, have been fully paid.
(ix)
Under no circumstances shall the Company cause or request the offer or sale of any Shares if, after giving effect to the sale of such
Shares, the aggregate gross sales proceeds sold pursuant to this Agreement would exceed the lesser of (A) together with all sales of
Shares under this Agreement, the Maximum Amount, (B) the amount available for offer and sale under the currently effective Registration
Statement and (C) the amount authorized from time to time to be issued and sold under this Agreement by the Company’s board of
directors, a duly authorized committee thereof or a duly authorized executive committee, and notified to the Agent in writing. Under
no circumstances shall the Company cause or request the offer or sale of any Shares at a price lower than the minimum price authorized
from time to time by the Company’s board of directors, duly authorized committee thereof or a duly authorized executive committee,
and notified to the Agent in writing. Further, under no circumstances shall the aggregate offering amount of the Shares sold pursuant
to this Agreement, including any separate underwriting or similar agreement covering principal transactions, exceed the Maximum Amount.
(x)
Unless the exceptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are satisfied with respect to the
Shares, the Company shall give the Agent at least one business day’s prior notice of its intent to sell any Shares in order to
allow the Agent time to comply with Regulation M.
(xi)
The Company agrees that during the term of this Agreement, any offer to sell, any solicitation of an offer to buy, or any sales of Shares
in an “at the market offering” as defined in Rule 415 under the Securities Act, including pursuant to Section 3(o)
of this Agreement, shall only be effected by or through the Agent; provided, however, that the foregoing limitation shall not apply to
the exercise of any outstanding option or warrant described in the Registration Statement and the Prospectus.
(b)
Nothing herein contained shall constitute the Agent an unincorporated association or partner with the Company. Under no circumstances
shall any Shares be sold pursuant to this Agreement after the date which is three years after the Registration Statement is first declared
effective by the Commission.
(c)
Notwithstanding any other provisions of this Agreement, the Company agrees that no sale of Shares shall take place, and the Company shall
not request the sale of any Shares, and the Agent shall not be obligated to sell, during any period in which the Company is, or could
be deemed to be, in possession of material non-public information or the Company’s insider trading policy would prohibit the purchase
and sale of the Company’s Common Stock by its officers and directors.
3.
Covenants. The Company covenants and agrees with the Agent as follows:
(a)
After the date hereof and through any Prospectus Delivery Period, prior to amending or supplementing the Registration Statement (including
any Rule 462(b) Registration Statement), Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, the Company shall
furnish to the Agent for review a copy of each such proposed amendment or supplement, allow the Agent a reasonable amount of time to
review and comment on such proposed amendment or supplement, and the Company shall not file any such proposed amendment or supplement
to which the Agent or counsel to the Agent reasonably object; provided, that the foregoing shall not apply with regards to the filing
by the Company of any Form 10-K, Form 10-Q or other Incorporated Document. Subject to this Section 3(a), immediately following
execution of this Agreement, the Company will prepare a prospectus supplement describing the selling terms of the Shares hereunder, the
plan of distribution thereof and such other information as may be required by the Securities Act or the Rules and Regulations or as the
Agent and the Company may deem appropriate, and if requested by the Agent, a Permitted Free Writing Prospectus containing the selling
terms of the Shares hereunder and such other information as the Company and the Agent may deem appropriate, and will file or transmit
for filing with the Commission, in accordance with Rule 424(b) or Rule 433, as the case may be, copies of the Prospectus as supplemented
and each such Permitted Free Writing Prospectus.
(b)
After the date of this Agreement, the Company shall promptly advise the Agent in writing (i) of the receipt of any comments of, or requests
for additional or supplemental information from, the Commission or for any amendments or supplements to the Registration Statement, the
Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus (excluding any Incorporated Documents), (ii) of the time and
date of any filing of any post-effective amendment to the Registration Statement or any amendment or supplement to any Base Prospectus,
the Prospectus or any Permitted Free Writing Prospectus(excluding any Incorporated Documents), (iii) of the time and date that any post-effective
amendment to the Registration Statement becomes effective, (iv) of the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or any post-effective amendment thereto or of any order preventing or suspending its use or the use of
any Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, or (v) of any proceedings to remove, suspend or terminate
from listing or quotation the Common Stock from any securities exchange upon which it is listed for trading or included or designated
for quotation, or of the threatening or initiation of any proceedings for any of such purposes. If the Commission shall enter any such
stop order at any time, the Company may terminate this Agreement. Additionally, the Company agrees that it shall comply with the provisions
of Rules 424(b), 430B and 430C, as applicable, under the Securities Act and will use its reasonable efforts to confirm that any filings
made by the Company under Rule 424(b), Rule 433 or Rule 462 were received in a timely manner by the Commission (without reliance on Rule
424(b)(8) or Rule 164(b)).
(c)
(i) From the date hereof through the later of (A) the termination of this Agreement and (B) the end of any applicable Prospectus Delivery
Period, the Company will comply with all requirements imposed upon it by the Securities Act, as now and hereafter amended, and by the
Rules and Regulations, as from time to time in force, and by the Exchange Act so far as necessary to permit the continuance of sales
of or dealings in the Shares as contemplated by the provisions hereof, the Base Prospectus, the Prospectus and any Permitted Free Writing
Prospectus. If during any applicable Prospectus Delivery Period any event occurs as a result of which the Base Prospectus, the Prospectus,
or any Permitted Free Writing Prospectus would include an untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances then existing, not misleading, or if during any applicable Prospectus
Delivery Period it is necessary or appropriate in the opinion of the Company or its counsel or in the reasonable opinion of the Agent
or counsel to the Agent to amend the Registration Statement or supplement the Base Prospectus, the Prospectus or any Permitted Free Writing
Prospectus, to comply with the Securities Act or to file under the Exchange Act any document which would be deemed to be incorporated
by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, the Company will promptly notify Agent
(or the Agent will notify the Company, as applicable), and the Agent shall suspend the offering and sale of any such Shares, and the
Company will amend the Registration Statement or supplement the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus
or file such document (at the expense of the Company) so as to correct such statement or omission or effect such compliance within the
time period prescribed by the Securities Act or the Exchange Act.
(ii)
In case the Agent is required to deliver (whether physically or through compliance with Rule 172 under the Securities Act or any similar
rule), in connection with the sale of the Shares, a Prospectus after the nine-month period referred to in Section 10(a)(3) of the Securities
Act, or after the time a post-effective amendment to the Registration Statement is required pursuant to Item 512(a) of Regulation S-K
under the Securities Act, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration
Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Securities Act
or Item 512(a) of Regulation S-K under the Securities Act, as the case may be. The Company shall cause each amendment or supplement to
any Base Prospectus or the Prospectus to be filed with the Commission as required pursuant to the applicable paragraph of Rule 424(b)
of the Securities Act or, in the case of any document which would be deemed to be incorporated by reference therein, to be filed with
the Commission as required pursuant to the Exchange Act, within the time period prescribed.
(iii)
If at any time following issuance of a Permitted Free Writing Prospectus there occurs an event or development as a result of which such
Permitted Free Writing Prospectus would conflict with the information contained in the Registration Statement, the Base Prospectus or
the Prospectus, or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the Company
promptly will notify the Agent and will promptly amend or supplement, at its own expense, such Permitted Free Writing Prospectus to eliminate
or correct such conflict, untrue statement or omission.
(d)
The Company shall use commercially reasonable efforts to take or cause to be taken all necessary action to qualify the Shares for sale
under the securities laws of such jurisdictions as Agent reasonably designates, if applicable, and to continue such qualifications in
effect so long as required for the distribution of the Shares, except that the Company shall not be required in connection therewith
to qualify as a foreign corporation or to execute a general consent to service of process in any state. The Company shall promptly advise
the Agent of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer
or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(e)
The Company will furnish to the Agent and counsel for the Agent, to the extent requested, copies of the Registration Statement, the Base
Prospectus, the Prospectus, any Permitted Free Writing Prospectus, and all amendments and supplements to such documents, in each case
as soon as available and in such quantities as the Agent may from time to time reasonably request.
(f)
The Company will make generally available to its security holders as soon as practicable an earnings statement (which need not be audited)
covering a 12-month period that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations.
If the Company makes any public announcement or release disclosing its results of operations or financial condition for a completed quarterly
or annual fiscal period (each, an “Earnings Release”) and the Company has not yet filed an Annual Report on
Form 10-K or a Form 10-Q with respect to such information, as applicable, then, prior to any sale of Shares, the Company shall be obligated
to (x) file a prospectus supplement with the Commission under the applicable paragraph of Rule 424(b), which prospectus supplement shall
include the applicable financial information or (y) file a Report on Form 8-K, which Form 8-K shall include the applicable financial
information.
(g)
The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated, will pay or cause
to be paid (i) all expenses (including stock or transfer taxes and stamp or similar duties allocated to the respective transferees) incurred
in connection with the registration, issue, sale and delivery of the Shares, (ii) all reasonable expenses and fees (including, without
limitation, fees and expenses of the Company’s accountants and counsel) in connection with the preparation, printing, filing, delivery,
and shipping of the Registration Statement (including the financial statements therein and all amendments, schedules, and exhibits thereto),
the Base Prospectus, each Prospectus, any Permitted Free Writing Prospectus, and any amendment thereof or supplement thereto, and the
producing, word-processing, printing, delivery, and shipping of this Agreement and other closing documents, including Blue Sky Memoranda
(covering the states and other applicable jurisdictions) prepared by counsel, if required, and including the cost to furnish copies of
each thereof to the Agent, (iii) all filing fees, (iv) listing fees, if any, (v) the cost and expenses of the Company relating to investor
presentations or any “roadshow” undertaken in connection with marketing of the Shares as agreed to by the Company, and (vi)
all other costs and expenses of the Company incident to the performance of its obligations hereunder that are not otherwise specifically
provided for herein. The Company shall reimburse the Agent upon request for its reasonable costs and out-of-pocket expenses incurred
in connection with this Agreement, including the fees and disbursements of its legal counsel, not to exceed (except in the case of legal
fees and disbursements as provided for below) US$35,000 without the approval of the Company (such approval not to be unreasonably withheld).
In addition, the Company shall pay the Agent US$5,000 for its legal fees on each Bringdown Date. All such reimbursements under this Agreement
shall be paid in U.S. dollars.
(h)
The Company will apply the net proceeds from the sale of the Shares in the manner set forth under the caption “Use of Proceeds”
in the Base Prospectus, the Prospectus, and any Permitted Free Writing Prospectus.
(i)
The Company will not, without (i) giving the Agent at least five business days’ prior written notice specifying the nature of the
proposed sale and the date of such proposed sale and (ii) the Agent’s suspending activity under this Agreement for such period
of time as requested by the Company or as deemed appropriate by the Agent in light of the proposed sale, offer for sale, sell, contract
to sell, pledge, grant any option for the sale of, enter into any transaction which is designed to, or might reasonably be expected to,
result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the
Company or any Subsidiary, or otherwise issue or dispose of, directly or indirectly (or publicly disclose the intention to make any such
offer, sale, pledge, grant, issuance or other disposition), of any Common Stock or any securities convertible into or exchangeable for,
or any options or rights to purchase or acquire, Common Stock, or permit the registration under the Securities Act of any Common Stock,
such securities, options or rights, except for (i) the registration of the Shares and the sales through the Agent pursuant to this Agreement
(ii) the offer or sale of Common Stock issued or issuable with respect to any currently outstanding options, warrants or convertible
preferred stock that are described in the Registration Statement and the Prospectus and (iii) a registration statement on Form S-8 relating
to employee benefit plans.
(j)
The Company shall not, at any time at or after the execution of this Agreement, offer or sell any Shares by means of any “prospectus”
(within the meaning of the Securities Act), or use any “prospectus” (within the meaning of the Securities Act) in connection
with the offer or sale of the Shares, in each case other than the Prospectus or any Permitted Free Writing Prospectus.
(k)
Until the termination of this Agreement, the Company will not take, directly or indirectly, any action designed to or that would constitute
or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation in violation
of the Securities Act, the Exchange Act or the rules and regulations thereunder of the price of any security of the Company to facilitate
the sale or resale of the Shares or otherwise violate any provision of Regulation M under the Exchange Act.
(l)
The Company will not incur any liability for any finder’s or broker’s fee or agent’s commission in connection with
the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby or thereby, except as contemplated
herein.
(m)
During any applicable Prospectus Delivery Period, the Company will file on a timely basis with the Commission such periodic and current
reports as required by the Rules and Regulations.
(n)
Except as described in the Company’s annual report on Form 10-K for the fiscal year ended June 30, 2022, the Company has maintained
and will maintain, such controls and other procedures, including without limitation those required by Sections 302 and 906 of the Sarbanes-Oxley
Act and the applicable regulations thereunder, that are designed to ensure that information required to be disclosed by the Company in
the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified
in the Commission’s rules and forms, including without limitation, controls and procedures designed to ensure that information
required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated
to the Company’s management, including its principal executive officer and its principal financial officer, or persons performing
similar functions, as appropriate to allow timely decisions regarding required disclosure, to ensure that material information relating
to Company is made known to them by others within those entities.
(o)
Each of the Company and Agent represent and agree that, neither the Company nor the Agent has made or will make any offer relating to
the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 under the Securities Act, or
that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 under the Securities Act, required to
be filed with the Commission other than a Permitted Free Writing Prospectus. The Company represents that it has treated or agrees that
it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and
has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely
Commission filing where required, legending and record keeping.
(p)
On the date hereof and each date when the Company (A) amends or supplements (other than a supplement to a Prospectus filed pursuant to
Rule 424(b) under the Securities Act relating solely to the offering of securities other than the Shares ) the Registration Statement
or Prospectus by means of a post-effective amendment, sticker, or supplement but not by means of incorporation of documents by reference
into the Registration Statement or the Prospectus relating to the Shares, (B) files an annual report on Form 10-K under the Exchange
Act (including any Form 10-K/A containing amended material financial information or a material amendment to the previously filed Form
10-K) or (C) files a report on Form 10-Q containing quarterly financial information that is incorporated by reference in the Registration
Statement and Prospectus (each of the dates in (A) through (C) are referred to herein as a “Bringdown Date”),
the Agent shall receive a favorable opinion of Holland & Knight LLP and Westward Law, LLC, counsels for the Company, dated as of
a date within ten (10) days after the applicable Bringdown Date, addressed to the Agent and modified as necessary to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of delivery of such opinions. With respect to this Section 3(p),
in lieu of delivering such opinions or letters for Bringdown Dates subsequent to the date hereof, each such counsel may furnish agent
with a letter (a “Reliance Letter”) to the effect that Agent may rely upon a prior opinion or letter delivered
under this Section 3(p) to the same extent as if it were dated the date of such letter (except that statement in such prior opinion
shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented as of the date of such Reliance
Letter); provided, however, the requirement to provide opinions and letters under this Section 3(p) is hereby waived for any Bringdown
Date occurring at a time at which no Transaction Notice is pending, which waiver shall continue until the earlier to occur of the date
the Company delivers a Transaction Notice hereunder and the next occurring Bringdown Date. Notwithstanding the foregoing, if the Company
subsequently decides to sell Shares following a Bringdown Date when the Company relied on such waiver and did not provide Agent with
opinions and letters under this Section 3(p), then before the Company delivers the Transaction Notice or Agent sells any Shares,
the Company shall cause each of Holland & Knight LLP and Westward Law, LLC to furnish to the Agent a written opinion or Reliance
Letter dated the date of the Transaction Notice.
(q)
On the date hereof, and each date when the Company files an annual report on Form 10-K, or a report on Form 10-Q containing quarterly
financial information that is incorporated by reference in the Registration Statement and Prospectus, the Company shall cause Marcum
LLP, or other independent accountants satisfactory to the Agent, to deliver to the Agent (x) a letter, dated as of a date within ten
(10) days after such date and addressed to Agent, in form and substance satisfactory to Agent (the first such letter, the “Initial
Comfort Letter”), confirming that they are independent public accountants within the meaning of the Securities Act and
are in compliance with the applicable requirements relating to the qualifications of accountants under Rule 2-01 of Regulation S-X of
the Commission, and stating the conclusions and findings of said firm with respect to the financial information and other matters and
(y) a letter updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had
it been given on such date and as modified as necessary to relate to the date of such letter (each such letter, a “Bringdown
Comfort Letter”); provided, however, the requirement to provide a Bringdown Comfort Letter under this Section
3(q) is hereby waived for any Bringdown Date occurring at a time at which no Transaction Notice is pending, which waiver shall continue
until the earlier to occur of the date the Company delivers a Transaction Notice hereunder and the next occurring Bringdown Date. Notwithstanding
the foregoing, if the Company subsequently decides to sell Shares following a Bringdown Date when the Company relied on such waiver and
did not provide Agent with a Bringdown Comfort Letter under this Section 3(q), then before the Company delivers the Transaction
Notice or Agent sells any Shares, the Company shall cause Marcum LLP, or other independent accountants satisfactory to the Agent, to
deliver to the Agent a Bringdown Comfort Letter dated the date of the Transaction Notice.
(r)
On the date hereof and each Bringdown Date, the Company shall furnish to the Agent a certificate, dated as of a date within ten (10)
days after the applicable Bringdown Date and addressed to Agent, signed by the chief executive officer and by the chief financial officer
of the Company, to the effect that:
(i)
The representations and warranties of the Company in this Agreement are true and correct in all material respects as if made at and as
of the date of the certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions
on its part to be performed or satisfied at or prior to the date of the certificate;
(ii)
No stop order or other order suspending the effectiveness of the Registration Statement or any part thereof or any amendment thereof
or the qualification of the Shares for offering or sale or notice that would prevent use of the Registration Statement, nor suspending
or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, has been issued, and no proceeding
for that purpose has been instituted or, to the best of their knowledge, is contemplated by the Commission or any state or regulatory
body;
(iii)
The Shares to be sold on that date have been duly and validly authorized by the Company and all corporate action required to be taken
for the authorization, issuance and sale of the Shares on that date has been validly and sufficiently taken;
(iv)
Subsequent to the respective dates as of which information is given in the Base Prospectus, the Prospectus or any Permitted Free Writing
Prospectus, as amended and supplemented, and except for pending transactions disclosed therein, the Company has not incurred any material
liabilities or obligations, direct or contingent, or entered into any material transactions, not in the ordinary course of business,
or declared or paid any dividends or made any distribution of any kind with respect to its capital stock, and there has not been any
change in the capital stock or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock
(other than as a result of the exercise or conversion of any currently outstanding options, warrants or convertible preferred stock that
are disclosed in the Prospectus), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse
Effect or any development that would reasonably be likely to result in a Material Adverse Effect (whether or not arising in the ordinary
course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance,
incurred by the Company; and
(v)
Except as stated in the Prospectus, and any Permitted Free Writing Prospectus, as amended and supplemented, there is not pending, or,
to the knowledge of the Company, threatened or contemplated, any action, suit or proceeding to which the Company is a party before or
by any court or governmental agency, authority or body, or any arbitrator, which would reasonably be likely to result in any Material
Adverse Effect; provided, however, the requirement to provide a certificate under this Section 3(r) is hereby waived for any Bringdown
Date occurring at a time at which no Transaction Notice is pending, which waiver shall continue until the earlier to occur of the date
the Company delivers a Transaction Notice hereunder and the next occurring Bringdown Date. Notwithstanding the foregoing, if the Company
subsequently decides to sell Shares following a Bringdown Date when the Company relied on such waiver and did not provide Agent with
a certificate under this Section 3(r), then before the Company delivers the Transaction Notice or Agent sells any Shares, the
Company shall provide Agent with a certificate dated the date of the Transaction Notice.
(s)
A reasonable time prior to each Bringdown Date, the Company, if so requested by the Agent, shall conduct a due diligence session, in
form and substance, satisfactory to the Agent, which shall include representatives of the management and the accountants of the Company.
(t)
The Company shall disclose in its annual report on Form 10-K and its reports on Form 10-Q with quarterly financial information the number
of Shares sold through the Agent under this Agreement, the Net Proceeds to the Company and the compensation paid by the Company with
respect to sales of the Shares pursuant to this Agreement.
(u)
The Company shall ensure that there are at all times sufficient Common Stock to provide for the issuance, free of any preemptive rights,
out of its authorized but unissued Common Stock, of the maximum aggregate number of Shares authorized for issuance by the Company’s
board of directors pursuant to the terms of this Agreement. The Company will use its reasonable best efforts to cause the Shares to be
listed on the NASDAQ Capital Market, and to maintain such listing. The Company shall cooperate with Agent and use its reasonable efforts
to permit Shares to be eligible for clearance and settlement through the facilities of DTC.
(v)
At any time during the term of this Agreement, the Company will advise the Agent promptly after it receives notice or obtains knowledge
of any information or fact that would alter or affect any opinion, certificate, letter and other document provided to the Agent pursuant
to Section 3 herein.
(w)
Subject to compliance with any applicable requirements of Regulation M under the Exchange Act and compliance with applicable securities
laws, the Company consents to the Agent trading in Common Stock for the Agent’s own account and for the account of its clients
(in compliance with all applicable laws) at the same time as sales of the Shares occur pursuant to this Agreement.
(x)
If to the knowledge of the Company, any condition set forth in Section 4 of this Agreement shall not have been satisfied on the
applicable Settlement Date, the Company will offer to any person who has agreed to purchase the Shares on such Settlement Date from the
Company as the result of an offer to purchase solicited by the Agent the right to refuse to purchase and pay for such Shares.
(y)
On the date hereof and each Bringdown Date, the Company shall furnish to the Agent an incumbency certificate, dated as of such date and
addressed to Agent, signed by the secretary of the Company.
(z)
Each acceptance by the Company of an offer to purchase the Shares hereunder shall be deemed to be an affirmation to the Agent that the
representations and warranties of the Company contained in or made pursuant to this Agreement are true and correct as of the date of
such acceptance as though made at and as of such date, and an undertaking that such representations and warranties will be true and correct
as of the Settlement Date for the Shares relating to such acceptance, as though made at and as of such date (except that such representations
and warranties shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented relating to such
Shares).
(aa)
The Company shall ensure that there are at all times sufficient Common Stock to provide for the
issuance, free of any preemptive rights, out of its authorized but unissued Common Stock or Common Stock held in treasury, of the maximum
aggregate number of Shares authorized for issuance by the Company’s board of directors pursuant to the terms of this Agreement.
(bb)
During any period when the delivery of a prospectus relating to the Shares is required (including
in circumstances where such requirement may be satisfied pursuant to Rule 172, 173 or any similar rule) to be delivered under the Securities
Act, the Company 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 the regulations thereunder.
(cc)
The Company shall cooperate with Agent and use its reasonable efforts to permit the Shares to be
eligible for clearance and settlement through the facilities of DTC.
(dd)
The Company will apply the Net Proceeds from the sale of the Shares in the manner set forth in
the Prospectus.
(ee)
To the extent that the Registration Statement is not available for the sales of the Shares as contemplated by this Agreement, the Company
shall file a new registration statement with respect to any additional shares of Common Stock necessary to complete such sales of the
Shares and shall cause such registration statement to become effective as promptly as practicable. After the effectiveness of any such
registration statement, all references to “Registration Statement” included in this Agreement shall be deemed to include
such new registration statement, including all documents incorporated by reference therein pursuant to Item 6 of Form S-3, and all references
to “Base Prospectus” included in this Agreement shall be deemed to include the final form of prospectus, including all documents
incorporated therein by reference, included in any such registration statement at the time such registration statement became effective.
4.
Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy of, as
of the date hereof, each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations,
warranties and agreements of the Company contained herein, (ii) the performance by the Company of its obligations hereunder and (iii)
the following additional conditions:
(a)
If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under
the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such
Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule
424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration
Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use
of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance
of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included
in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been
complied with to the Agent’s satisfaction.
(b)
The Agent shall not have advised the Company that the Registration Statement, the Base Prospectus, the Prospectus, or any amendment or
supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent’s opinion,
is material, or omits to state a fact which, in the Agent’s opinion, is material and is required to be stated therein or is necessary
to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus,
the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading.
(c)
Except as set forth or contemplated in the Base Prospectus, the Prospectus and any Permitted Free Writing Prospectus, subsequent to the
respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations,
direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind
with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants,
convertible securities or other rights to purchase the capital stock (other than as a result of the exercise or conversion of any currently
outstanding options, warrants or convertible preferred stock that are disclosed in the Prospectus), or any material change in the short-term
or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material
Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake,
accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described
above, in the Agent’s judgment, makes it impractical or inadvisable to offer or deliver the Shares.
(d)
The Company shall have performed each of its obligations under Section 3(q).
(e)
The Company shall have performed each of its obligations under Section 3(r).
(f)
The Company shall have performed each of its obligations under Section 3(s).
(g)
FINRA shall not have raised any objection to the fairness and reasonableness of the terms and arrangements under this Agreement.
(h)
All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been
made within the applicable time period prescribed for such filing by Rule 424.
(i)
The Company shall have furnished to Agent and the Agent’s counsel such additional documents, certificates and evidence as they
may have reasonably requested.
(j)
Trading in the Common Stock shall not have been suspended on the NASDAQ Capital Market. The Shares shall have been listed and authorized
for trading on the NASDAQ Capital Market prior to the first Settlement Date, and satisfactory evidence of such actions shall have been
provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market.
(k)
The Company shall have in place a directors and officers insurance policy, in form and substance reasonably satisfactory to Agent.
All
such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to Agent and the Agent’s counsel. The Company will furnish Agent with such conformed copies
of such opinions, certificates, letters and other documents as Agent shall reasonably request.
5.
Indemnification and Contribution.
(a)
(i) The Company agrees to indemnify and hold harmless the Agent and each of the other Indemnified Parties (as defined below) from and
against, and pay on demand for, any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses
and disbursements, and any and all actions, suits, proceedings and investigations in respect thereof and any and all legal and other
costs, expenses and disbursements in giving testimony or furnishing documents in response to subpoena or otherwise (including, without
limitation, the costs, expenses and disbursements, as and when incurred, of investigating, preparing, pursuing or defending any such
action, suit, proceeding or investigation (whether or not in connection with litigation in which any Indemnified Party is a party)) (collectively,
“Losses”), directly or indirectly, caused by, relating to, based upon, arising out of, or in connection with
this Agreement, including, without limitation, any act or omission by the Agent in connection with its acceptance of or the performance
or non-performance of its obligations under the Agreement, any breach by the Company of any representation, warranty, covenant or agreement
contained in the Agreement (or in any instrument, document or agreement relating thereto, including any agency agreement), or the enforcement
by the Agent of its rights under the Agreement or these indemnification provisions, except to the extent that any such Losses are found
in a final judgment by a court of competent jurisdiction (not subject to further appeal) to have resulted primarily and directly from
the gross negligence or willful misconduct of the Indemnified Party seeking indemnification hereunder. The Company also agrees that no
Indemnified Party shall have any liability (whether direct or indirect, in contract or tort or otherwise) to the Company for or in connection
with this Agreement for any other reason, except to the extent that any such liability is found in a final judgment by a court of competent
jurisdiction (not subject to further appeal) to have resulted primarily and directly from such Indemnified Party’s gross negligence
or willful misconduct This indemnity agreement will be in addition to any liability that the Company otherwise might have.
(ii)
These indemnification provisions shall extend to the following persons (collectively, the “Indemnified Parties”):
Maxim, its present and former affiliated entities, managers, members, officers, employees, legal counsel, agents and controlling persons
(within the meaning of the federal securities laws), and the officers, directors, partners, stockholders, members, managers, employees,
legal counsel, agents and controlling persons of any of them. These indemnification provisions shall be in addition to any liability
which the Company may otherwise have to any Indemnified Party.
(iii)
If any action, suit, proceeding or investigation is commenced, as to which an Indemnified Party proposes to demand indemnification, it
shall notify the Company with reasonable promptness; provided, however, that any failure by an Indemnified Party to notify
the Company shall not relieve the Company from its obligations hereunder except to the extent that the Company is actually and materially
prejudiced by such failure to notify. An Indemnified Party shall have the right to retain counsel of its own choice to represent it,
and the fees, expenses and disbursements of such counsel shall be borne by the Company. Any such counsel shall, to the extent consistent
with its professional responsibilities, cooperate with the Company and any counsel designated by the Company. The Company shall be liable
for any settlement of any claim against any Indemnified Party made with the Company’s written consent. The Company shall not, without
the prior written consent of the Agent, settle or compromise any claim, or permit a default or consent to the entry of any judgment in
respect thereof, unless such settlement, compromise or consent (i) includes, as an unconditional term thereof, the giving by the claimant
to all of the Indemnified Parties of an unconditional release from all liability in respect of such claim, and (ii) does not contain
any factual or legal admission by or with respect to an Indemnified Party or an adverse statement with respect to the character, professionalism,
expertise or reputation of any Indemnified Party or any action or inaction of any Indemnified Party.
(iv)
In order to provide for just and equitable contribution, if a claim for indemnification pursuant to these indemnification provisions
is made but it is found in a final judgment by a court of competent jurisdiction (not subject to further appeal) that such indemnification
may not be enforced in such case, even though the express provisions hereof provide for indemnification in such case, then the Company
shall contribute to the Losses to which any Indemnified Party may be subject (i) in accordance with the relative benefits received by
the Company and its stockholders, subsidiaries and affiliates, on the one hand, and the Indemnified Party, on the other hand, and (ii)
if (and only if) the allocation provided in clause (i) of this sentence is not permitted by applicable law, in such proportion as to
reflect not only the relative benefits, but also the relative fault of the Company, on the one hand, and the Indemnified Party, on the
other hand, in connection with the statements, acts or omissions which resulted in such Losses as well as any relevant equitable considerations.
No person found liable for a fraudulent misrepresentation shall be entitled to contribution from any person who is not also found liable
for fraudulent misrepresentation. The relative benefits received (or anticipated to be received) by the Company and its stockholders,
subsidiaries and affiliates shall be deemed to be equal to the aggregate consideration payable or receivable by such parties in connection
with the transaction or transactions to which the Agreement relates relative to the amount of fees actually received by the Agent in
connection with such transaction or transactions. Notwithstanding the foregoing, in no event shall the amount contributed by all Indemnified
Parties exceed the amount of fees previously received by the Agent pursuant to the Agreement.
(b)
(i) The Agent will indemnify and hold harmless the Company and its affiliates and directors and each officer of the Company who signed
the Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act (the “Company Indemnified Parties”) from and against any Losses to which the
Company or the Company Indemnified Parties may become subject, under the Securities Act or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of the Agent), insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon an untrue statement or omission or alleged untrue statement or omission
of a material fact contained in the Registration Statement, any Base Prospectus, the Prospectus, or any amendment or supplement thereto
or any Permitted Free Writing Prospectus, but only and solely to the extent that such untrue statement or alleged untrue statement or
omission or alleged omission was made in the Registration Statement, any Base Prospectus, the Prospectus, or any amendment or supplement
thereto, or any Permitted Free Writing Prospectus in reliance upon and in conformity with written information furnished to the Company
by Agent expressly for use in the preparation thereof, it being understood and agreed that the only information furnished by the Agent
consists of the information described as such in Section 5(b)(ii) hereof, by the Company in connection with investigating or defending
against any such loss, claim, damage, liability or action.
(ii)
The Agent confirms and the Company acknowledges that as of the date hereof no information has been furnished in writing to the Company
by or on behalf of the Agent specifically for inclusion in the Registration Statement, any Base Prospectus, the Prospectus or any Permitted
Free Writing Prospectus.
(c)
If the indemnification provided for in this Section 5 is unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as
a result of the losses, claims, damages or liabilities referred to in subsection (a) or (b) above, (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and the Agent on the other from the Offering 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 Agent on the
other in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company on the one hand and the Agent on the other shall be
deemed to be in the same proportion as the total net proceeds from the Offering (before deducting expenses) received by the Company and
the total underwriting discounts and commissions received by the Agent, bear to the total public offering price of the Shares. The relative
fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by the Company or the Agent and the parties’
relevant intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company
and the Agent agree that it would not be just and equitable if contributions pursuant to this subsection (c) were to be determined by
pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the
first sentence of this subsection (c). The amount paid by an indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (c) shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending against any action or claim which is the subject of this subsection
(c). Notwithstanding the provisions of this subsection (c), the Agent shall not be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds
the amount of any damages that the Agent 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.
(d)
Neither termination of this Agreement nor completion of the Offering shall affect these indemnification provisions which shall remain
operative and in full force and effect. The indemnification provisions shall be binding upon the Company and the Agent and their respective
successors and assigns and shall inure to the benefit of the Indemnified Parties and the Company Indemnified Parties and their respective
successors, assigns, heirs and personal representatives.
6.
Representations and Agreements to Survive Delivery. All representations and warranties of the Company herein or in certificates
delivered pursuant hereto, and agreements of the Agent and the Company herein, including but not limited to the agreements of the Agent
and the Company contained in Section 5 hereof, shall remain operative and in full force and effect regardless of any investigation
made by or on behalf of the Agent or any controlling person thereof, or the Company or any of its officers, directors, or controlling
persons, and shall survive delivery of, and payment for, the Shares to and by the Agent hereunder.
7.
Termination of this Agreement.
(a)
The Company shall have the right, by giving written notice as hereinafter specified, to terminate the provisions of this Agreement relating
to the solicitation of offers to purchase the Shares in its sole discretion at any time upon thirty (30) days’ prior written notice.
Any such termination shall be without liability of any party to any other party except that (i) if the Shares have been sold through
the Agent for the Company, then Sections 3(g), 3(o) and 3(y) shall remain in full force and effect, (ii) with respect
to any pending sale, through the Agent for the Company, the obligations of the Company with respect to such pending sale of Shares, including
in respect of compensation of the Agent, shall remain in full force and effect notwithstanding such termination and (iii) the provisions
of Section 2(a)(vi), Section 3(g), Section 3(o), Section 5 and Section 6 of this Agreement shall remain
in full force and effect notwithstanding such termination.
(b)
The Agent shall have the right, by giving written notice as hereinafter specified, to terminate the provisions of this Agreement relating
to the solicitation of offers to purchase the Shares in its sole discretion at any time. Any such termination shall be without liability
of any party to any other party except that (i) the provisions of the last three sentences of Section 3(g) and the entirety of
Section 3(o), Section 5 and Section 6 of this Agreement shall remain in full force and effect notwithstanding such
termination and (ii) the provisions of Section 3(g) other than the last three sentences thereof shall remain in full force and
effect only if the Agent has terminated this Agreement as a result of the Company’s default of its obligations hereunder and its
failure to cure any default within a reasonable period of time.
(c)
This Agreement shall remain in full force and effect for eighteen (18) months from the date hereof unless terminated pursuant to Sections
7(a) or (b) above or otherwise by mutual agreement of the parties; provided that any such termination by mutual agreement
shall in all cases be deemed to provide that Section 3(g), Section 3(o), Section 5 and Section 6 shall remain
in full force and effect. This Agreement shall terminate automatically upon the issuance and sale of Shares having an aggregate offering
price equal to the amount set forth in the first paragraph of this Agreement.
(d)
Any termination of this Agreement shall be effective on the date specified in such notice of termination; provided that such termination
shall not be effective until the close of business on the date of receipt of such notice by the Agent or the Company, as the case may
be. If such termination shall occur prior to the Settlement Date for any sale of the Shares, such sale shall settle in accordance with
the provisions of Section 2(a) of this Agreement.
8.
Default by the Company. If the Company shall fail at any Settlement Date to sell and deliver the number of Shares which
it is obligated to sell hereunder, then this Agreement shall terminate without any liability on the part of the Agent or, except as provided
in Section 3(g) hereof, any non-defaulting party. No action taken pursuant to this Section 8 shall relieve the Company
from liability, if any, in respect of such default, and the Company shall (A) hold the Agent harmless against any loss, claim or damage
arising from or as a result of such default by the Company and (B) pay the Agent any commission to which it would otherwise be entitled
absent such default.
9.
Notices. Except as otherwise provided herein, all communications under this Agreement shall be in writing and, if to the
Agent, shall be mailed, delivered or sent by facsimile or email transmission to Maxim Group LLC, 300 Park Avenue, 16th Floor,
New York, NY 10022, Attention: Clifford A. Teller, Co-President (fax: (212) 895-3783; email: cteller@maximgrp.com), with a required copy
(which shall not constitute notice) to Pryor Cashman LLP, 7 Times Square, New York, NY 10036, Attention: M. Ali Panjwani, Esq. (fax:
(212) 326-0806; email: ali.panjwani@pryorcashman.com). Notices to the Company shall be given to it at Block 6, Triq Paceville, St. Julians,
Malta, STJ 3109, Attention: Michael Villani (email: michael@esportsentertainmentgroup.com, with a required copy (which shall not constitute
notice) to Holland & Knight LLP, 701 Brickell Avenue, Suite 3300, Miami, FL 33131, Attn: Shane Segarra, Esq. (email: shane.segarra@hklaw.com).
Any party to this Agreement may change such address for notices by sending to the parties to this Agreement written notice of a new address
for such purpose.
10.
Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective successors and assigns and the controlling persons, officers and directors referred to in Section 5. Nothing
in this Agreement is intended or shall be construed to give to any other person, firm or corporation any legal or equitable remedy or
claim under or in respect of this Agreement or any provision herein contained. The term “successors and assigns” as herein
used shall not include any purchaser, as such purchaser, of any of the Shares from the Agent.
11.
Absence of Fiduciary Relationship. The Company acknowledges and agrees that: (a) the Agent has been retained solely to
act as an sales agent and/or principal in connection with the sale of the Shares and that no fiduciary, advisory or agency relationship
between the Company and the Agent has been created in respect of any of the transactions contemplated by this Agreement, irrespective
of whether the Agent has advised or are advising the Company on other matters; (b) the price and other terms of the Shares set forth
in this Agreement were established by the Company following discussions and arms-length negotiations with the Agent and the Company is
capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated
by this Agreement; (c) it has been advised that the Agent and its affiliates are engaged in a broad range of transactions which may involve
interests that differ from those of the Company and that the Agent has no obligation to disclose such interest and transactions to the
Company by virtue of any fiduciary, advisory or agency relationship; (d) it has been advised that the Agent is acting, in respect of
the transactions contemplated by this Agreement, solely for the benefit of the Agent, and not on behalf of the Company; and (e) it waives
to the fullest extent permitted by law, any claims it may have against the Agent for breach of fiduciary duty or alleged breach of fiduciary
duty in respect of any of the transactions contemplated by this Agreement and agrees that the Agent shall have no liability (whether
direct or indirect) to the Company in respect of such a fiduciary duty claim on behalf of or in right of the Company, including stockholders,
employees or creditors of the Company.
12.
Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York,
including Section 5-1401 of the General Obligations Law of the State of New York, but otherwise without regard to conflict of laws rules
that would apply the laws of any other jurisdiction.
13.
Counterparts. This Agreement may be executed in one or more counterparts and, if executed in more than one counterpart,
the executed counterparts shall each be deemed to be an original and all such counterparts shall together constitute one and the same
instrument.
14.
Adjustments for Stock Splits. The parties acknowledge and agree that all share-related numbers contained in this Agreement
shall be adjusted to take into account any stock split, reverse stock split, stock dividend or similar event effected with respect to
the Shares.
15.
Entire Agreement; Amendment; Severability; Headings. This Agreement (including all schedules and exhibits attached hereto
and transaction notices issued pursuant hereto) constitutes the entire agreement and supersedes all other prior and contemporaneous agreements
and undertakings, both written and oral, among the parties hereto with regard to the subject matter hereof. Neither this Agreement nor
any term hereof may be amended except pursuant to a written instrument executed by the Company and the Agent. In the event that any one
or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable
as written by a court of competent jurisdiction, then such provision shall be given full force and effect to the fullest possible extent
that it is valid, legal and enforceable, and the remainder of the terms and provisions herein shall be construed as if such invalid,
illegal or unenforceable term or provision was not contained herein, but only to the extent that giving effect to such provision and
the remainder of the terms and provisions hereof shall be in accordance with the intent of the parties as reflected in this Agreement.
The section headings used in this Agreement are for convenience only and shall not affect the construction hereof.
16.
Waiver of Jury Trial. Each of the Company and the Agent hereby waives any right it may have to a trial by jury in respect
of any claim based upon or arising out of this Agreement or the transactions contemplated hereby.
17.
Submission to Jurisdiction. The Company irrevocably submits to the non-exclusive jurisdiction of any New York State or
United States federal court sitting in The City of New York, Borough of Manhattan, over any suit, action or proceeding arising out of
or relating to this Agreement, the Prospectus, the Registration Statement, or the offering of the Shares. The Company irrevocably waives,
to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any such suit, action
or proceeding brought in such a court and any claim that any such suit, action or proceeding brought in such a court has been brought
in an inconvenient forum. To the extent that the Company has or hereafter may acquire any immunity (on the grounds of sovereignty or
otherwise) from the jurisdiction of any court or from any legal process with respect to itself or its property, the Company irrevocably
waives, to the fullest extent permitted by law, such immunity in respect of any such suit, action or proceeding including without limitation,
any immunity pursuant to the U.S. Foreign Sovereign Immunities Act of 1976, as amended. Each of the Agent and the Company further agrees
to accept and acknowledge service of any and all process which may be served in any such suit, action or proceeding in the Supreme Court
of the State of New York, New York County, or in the United States District Court for the Southern District of New York and agrees that
service of process upon the Company mailed by certified mail or delivered by Federal Express via overnight delivery to the Company’s
address shall be deemed in every respect effective service of process upon the Company in any such suit, action or proceeding, and service
of process upon the Agent mailed by certified mail or delivered by Federal Express via overnight delivery to the Agent’s address
shall be deemed in every respect effective service of process upon such Agent in any such suit, action or proceeding.
[Signature
Page Follows]
If
the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company the enclosed duplicate
of this Sales Agreement, whereupon this letter and your acceptance shall represent a binding agreement between the Company and the Agent
in accordance with its terms.
|
Very
truly yours, |
|
|
|
|
ESPORTS
ENTERTAINMENT GROUP, INC. |
|
|
|
|
By |
/s/
Alex Igelman |
|
Name: |
Alex
Igelman |
|
Title: |
Chief
Executive Officer |
Confirmed
as of the date first |
|
above
mentioned. |
|
|
|
MAXIM
GROUP LLC |
|
|
|
By |
/s/
Clifford A. Teller |
|
Name: |
Clifford
A. Teller |
|
Title: |
Co-President |
|
Schedule
A
Permitted
Free Writing Prospectus
None.
Schedule A-1
Schedule
B
Individuals
Permitted to Authorize Sales of Shares
| ● | Alex
Igelman, Chief Executive Officer
alex.igelman@esportsentertainmentgroup.com |
| ● | Michael
Villani, Chief Financial Officer
michael@esportsentertainmentgroup.com |
Schedule B-1
Schedule
C
Form
of Transaction Notice
From:
|
Esports
Entertainment Group, Inc. |
|
|
|
To:
|
Maxim
Group LLC |
|
|
|
Subject:
|
Transaction
Notice |
|
|
|
|
Date: |
[●],
202__ |
Ladies
and Gentlemen:
Pursuant
to the terms and subject to the conditions contained in the Sales Agreement between Esports Entertainment Group, Inc. (the “Company”),
and Maxim Group LLC (“Agent”), dated September 15, 2023, as may be amended, the Company hereby requests that
the Agent sell up to [●] of the Company’s common stock, par value $0.001 per share, at a minimum market price of $[●]
per share, during the time period beginning [month, day, time] and ending [month, day, time].
Schedule C-1
Schedule
D
Individual
to Which Notice Can Be Given
Esports
Entertainment Group, Inc.
[ ]
Maxim
Group LLC
[ ]
Exhibit D-1
Schedule
1(a)(xix)
Subsidiaries
of Esports Entertainment Group, Inc. *
Name
of Entity |
|
Jurisdiction |
ggCircuit
LLC |
|
Indiana |
Esports
Services (Malta) Limited |
|
Malta |
Esports
Entertainment (Malta) Limited |
|
Malta |
*
The names of certain subsidiaries have been omitted from this Schedule in accordance with applicable rules.
The
omitted subsidiaries, considered in the aggregate as a single subsidiary, did not constitute a “significant subsidiary”
(as defined in Rule 1-02(v) of Regulation S-X).
Schedule 1(a)(xix)
Exhibit
5.1
WESTWARD LAW, LLC |
|
|
3273 E. Warm Springs |
|
Las Vegas, NV 89120 |
|
|
Telephone: 702-595-8005 |
|
Email: keavery@westwardlaw.com |
September
15, 2023
Esports
Entertainment Group, Inc. Block 6, Triq Paceville
St.
Julians, Malta, STJ 3109
Re:
Esports Entertainment Group, Inc., Registration Statement on Form S-3
Ladies
and Gentlemen:
We
have acted as Nevada corporate counsel for Esports Entertainment Group, Inc., a Nevada corporation (the “Company”), in
connection with the filing with the Securities and Exchange Commission (the “Commission”) of the Registration Statement
on Form S-3 (the “Registration
Statement”),
pursuant to which the Company is registering under the Securities Act of 1933, as amended (the “Act”), the offer and
sale of up to an aggregate of $7,186,267 of the Company’s common stock, par value $0.001 per share (the “ATM Shares”),
from time to time in “at the market offerings,” as defined in Rule 415 promulgated under the Act, pursuant to the terms of
that certain Equity Distribution Agreement, dated September 15, 2023 (the “Sales Agreement”), by and among the Company
and Maxim Group LLC, as agent.
This
opinion is being rendered in connection with the filing of the Registration Statement.
In
connection with this opinion, we have examined originals or copies, certified or otherwise identified to our satisfaction, of such documents,
corporate records, certificates of public officials, officer’s certificates, and such other instruments, obtained for this opinion
as well as prior opinions, as we have deemed necessary or advisable for the purpose of rendering this opinion. In rendering the opinion
set forth below, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed
copies, the truth of representations made by officers of the Company and the authenticity of the originals of all documents.
As
to matters of fact material to this opinion, we have relied to the extent we deemed reasonably appropriate upon current and past representations
or certificates of officers or directors of the Company we have received, without independently verifying the accuracy of such documents,
records and instruments.
Our
opinion herein is expressed solely with respect to the corporate laws of the State of Nevada. Our opinion is based on these laws as in
effect on the date hereof. We express no opinion to the extent that any other laws are applicable to the subject matter hereof and express
no opinion and provide no assurance as to compliance with any other federal or state securities law, rule or regulation.
Esports
Entertainment Group, Inc.
September 15, 2023
Page
2
On
the basis of the foregoing, and in reliance thereon, we are of the opinion that, as of the date hereof, the ATM Shares have been duly
authorized, and when issued, delivered and paid for in accordance with the Sales Agreement, will be duly and validly issued, fully paid
and non-assessable.
We
hereby consent to your filing this opinion as
an exhibit to the Company’s Registration
Statement referenced above, and further
consent to the reference of our name under the caption “Legal
Matters” in the Prospectus, which
is a part of the Registration Statement. In giving this consent, we believe, but do not hereby guarantee or admit, that we are “experts”
within the meaning of such term
as used in Section 11 of the Act or the rules and regulations promulgated thereunder by the Commission with respect to any part of the
Registration Statement or related Prospectus, nor do we guarantee or admit that we are in the category of persons whose consent is required
under Section 7 of the Act or the rules and
regulations promulgated thereunder by
the Commission.
Very
truly yours,
WESTWARD LAW, LLC
Exhibit
10.1
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|
|
|
|
Esports
Entertainment Group |
|
Block
6, |
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Triq
Paceville, |
|
St.
Julians, STJ 3109 |
|
Malta |
September
15, 2023
Alto
Opportunity Master Fund, SPC - Segregated Master Portfolio B
c/o
Ayrton Capital LLC
55
Post Rd W
Westport,
CT 06880
Re: |
Consent
to future filing of registration statement or offering statement |
Dear
Sirs:
Reference
is hereby made to that certain Securities Purchase Agreement, dated April 30, 2023, by and among Esports Entertainment Group, Inc., a
Nevada corporation (the “Company”) and the Buyers signatory hereto (“you” or the “Holders”)
(the “Securities Purchase Agreement”). Capitalized terms not defined herein shall have the meaning as set forth in
the Securities Purchase Agreement.
Notwithstanding
the terms of Section 4(j) of the Securities Purchase Agreement, the Buyers hereby consent to the Company’s future initial filing
of a registration statement and prospectus supplement at any time during the period commencing as of the time of execution of this letter
through, and including, 5:30 P.M., New York city time on September 18, 2023 under the 1933 Act relating to the Company’s securities
with the SEC, but only with respect to the initial filing of such registration statement and prospectus supplement with the SEC and not
with respect to (x) any subsequent amendment or supplement thereto, (y) the issuance and sale of any of the Company’s securities
contemplated by thereby or (z) any future Subsequent Placement.
Except
as explicitly provided in the prior paragraph, nothing herein shall amend, modify or waive any term or condition of the Securities Purchase
Agreement or any other Transaction Document, all of which remain in full force and effect.
The
Company shall, on or before 9:00 A.M., New York City time, on the Trading Date following the date of this letter, file a Current Report
on Form 8-K with the SEC disclosing all material terms of the transactions contemplated hereby and attaching the form of this letter
as an exhibit thereto (collectively with all exhibits attached thereto, the “8-K Filing”). From and after the filing
of the 8-K Filing with the SEC, to the Company’s knowledge, the Buyers shall not be in possession of any material, nonpublic information
received from the Company or any of its Subsidiaries or any of their respective officers, directors, employees, affiliates or agents,
that is not disclosed in the 8-K Filing. In addition, effective upon the issuance of the 8-K Filing, the Company acknowledges and agrees
that any and all confidentiality or similar obligations under any letter, whether written or oral, between the Company, any of its Subsidiaries
or any of their respective officers, directors, affiliates, employees or agents, on the one hand, and the Buyers or any of their affiliates,
on the other hand, shall terminate and be of no further force or effect. The Company understands and confirms that the Buyers will rely
on the foregoing representations in effecting transactions in securities of the Company.
If
you have any questions regarding the foregoing, please feel free to contact Michael Villani at [ ].
|
Sincerely, |
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|
|
Esports
Entertainment Group, Inc. |
|
|
|
|
By: |
/s/
Michael Villani |
|
Name: |
Michael
Villani |
|
Title: |
Chief
Financial Officer |
Agreed
to and Acknowledged:
Alto
Opportunity Master Fund, SPC - Segregated Master Portfolio B
By: |
/s/
Waqas Khatri |
|
Name: |
Waqas
Khatri |
|
Title: |
Director |
|
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Esports Entertainment (NASDAQ:GMBLP)
過去 株価チャート
から 4 2024 まで 5 2024
Esports Entertainment (NASDAQ:GMBLP)
過去 株価チャート
から 5 2023 まで 5 2024