Exhibit 1.1
16,666,667 Shares
RESONANT INC.
Common Stock
UNDERWRITING AGREEMENT
February 6, 2020
STIFEL, NICOLAUS & COMPANY, INCORPORATED
As representative of the several Underwriters
named in Schedule I hereto c/o Stifel,
Nicolaus &
Company, Incorporated
787 Seventh Ave, 12th Floor
New York, NY 10019
Ladies and Gentlemen:
Resonant Inc., a Delaware
corporation (the “Company”), proposes to issue and sell to the several underwriters named in Schedule I hereto (the
“Underwriters”) for whom you are acting as representative (the “Representative”) an aggregate of 16,666,667
shares (the “Firm Shares”) of the common stock, par value $0.001 per share, of the Company (“Common Stock”).
The Company also proposes to sell to the several Underwriters at the option of the Underwriters, up to an additional 2,500,000
shares of Common Stock (the “Option Shares”). The Firm Shares and the Option Shares are hereinafter referred to collectively
as the “Shares”.
The Company confirms
as follows its agreements with the Representative and the several other Underwriters.
1. The
Company represents and warrants to, and agrees with, each of the Underwriters that, as of the date hereof and as of the Closing
Date and each Option Closing Date, if any:
(i) A
registration statement on Form S-3 (File No. 333-228353) in respect of the Shares and one or more pre-effective amendments thereto
(together, the “Initial Registration Statement”) have been filed with the Securities and Exchange Commission (the “Commission”);
the Initial Registration Statement and any post-effective amendment thereto, each in the form heretofore delivered to you, have
been declared effective by the Commission in such form; other than a registration statement, if any, increasing the size of the
offering (a “Rule 462(b) Registration Statement”), filed pursuant to Rule 462(b) under the Securities Act of 1933,
as amended (the “Securities Act”), which became effective upon filing, no other document with respect to the Initial
Registration Statement has heretofore been filed with the Commission; no stop order suspending the effectiveness of the Initial
Registration Statement, any post-effective amendment thereto or the Rule 462(b) Registration Statement, if any, has been issued,
no proceeding for that purpose has been initiated or threatened by the Commission and any request on the part of the Commission
for additional information from the Company has been satisfied in all material respects; any preliminary prospectus included in
the Initial Registration Statement, as originally filed or as part of any amendment thereto, or filed with the Commission pursuant
to Rule 424(a) of the rules and regulations of the Commission under the Securities Act is hereinafter called a “Preliminary
Prospectus”; the various parts of the Initial Registration Statement and the Rule 462(b) Registration Statement, if any,
including all schedules and exhibits thereto and including the information contained in the form of final prospectus filed with
the Commission pursuant to Rule 424(b) under the Securities Act and deemed by virtue of Rule 430A under the Securities Act to be
part of the Initial Registration Statement at the time it was declared effective or such part of the Rule 462(b) Registration Statement,
if any, became or hereafter becomes effective, each as amended at the time such part of the Initial Registration Statement became
effective, are hereinafter collectively called the “Registration Statement”; the Preliminary Prospectus relating to
the Shares that was included in the Registration Statement immediately prior to the Applicable Time (as defined in Section 1(a)(iii)
hereof) is hereinafter called the “Pricing Prospectus”; such final prospectus, in the form first filed pursuant to
Rule 424(b) under the Securities Act, is hereinafter called the “Prospectus”; and any “issuer free writing prospectus”
as defined in Rule 433 under the Securities Act relating to the Shares is hereinafter called an “Issuer Free Writing Prospectus”;
and all references to the Registration Statement, any Preliminary Prospectus, the Pricing Prospectus, the Prospectus, any Issuer
Free Writing 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”);
(ii) (1)
at the respective times the Initial Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments
thereto became effective and at the Closing Date (as defined herein) (and, if any Option Shares are purchased, at each Option Closing
Date) (as defined herein)), the Initial Registration Statement, any Rule 462(b) Registration Statement and any amendments and supplements
thereto complied and will comply in all material respects with the requirements of the Securities Act and the rules and regulations
of the Commission thereunder (the “Rules and Regulations”) and did not and will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not
misleading, and (2) at the time the Prospectus or any amendments or supplements thereto were issued and at the Closing Date (and,
if any Option Shares are purchased, at each Option Closing Date), neither the Prospectus nor any amendment or supplement thereto
included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the
representations and warranties in clauses (1) and (2) above shall not apply to statements in or omissions from the Registration
Statement or the Prospectus made in reliance upon and in strict conformity with information furnished to the Company in writing
by any Underwriter through the Representative expressly for use in the Registration Statement or the Prospectus, it being understood
and agreed that the only such information provided by any Underwriter is that described as such in Section 9(b) hereof. No order
preventing or suspending the use of any Preliminary Prospectus, the Pricing Prospectus or any Issuer Free Writing Prospectus has
been issued by the Commission. No document has been prepared or delivered in reliance on Rule 434 under the Securities Act;
Each Preliminary Prospectus,
Pricing Prospectus, Issuer Free Writing Prospectus and the Prospectus filed as part of the Initial Registration Statement as originally
filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act, complied when so filed in all
material respects with the requirements of the Securities Act and the Rules and Regulations and each Preliminary Prospectus, Pricing
Prospectus, Issuer Free Writing Prospectus and the Prospectus delivered to the Underwriters for use in connection with this offering
was identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T;
(iii) For
the purposes of this Agreement, the “Applicable Time” is 8:30 p.m. (Eastern time) on the date of this Agreement; the
Pricing Prospectus as supplemented by the Issuer Free Writing Prospectuses, Written Testing-the-Waters Communications (as hereinafter
defined) and other documents listed in Schedule II hereto, taken together (collectively, the “Pricing Disclosure Package”)
as of the Applicable Time, did not include any untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and each
Issuer Free Writing Prospectus and/or Written Testing-the-Waters Communication listed on Schedule II hereto does not conflict with
the information contained in the Registration Statement, the Pricing Prospectus or the Prospectus and each such Issuer Free Writing
Prospectus and/or Written Testing-the-Waters Communication, as supplemented by and taken together with the Pricing Disclosure Package
as of the Applicable Time, did not include any untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to statements or omissions made in an Issuer Free Writing Prospectus
or Written Testing-the-Waters Communication in reliance upon and in strict conformity with information furnished in writing to
the Company by an Underwriter through the Representative expressly for use therein. “Testing-the-Waters Communication”
means any oral or written communication with potential investors undertaken in reliance on Section 5(d) of the Securities Act;
(iv) The
Company has filed a registration statement pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
to register the Common Stock, and such registration statement has been declared effective; At the time of filing the Initial Registration
Statement the Company was not and is not an “ineligible issuer,” as defined under Rule 405 under the Securities Act;
(v) The
Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own, lease and operate its properties and conduct its business as described in
the Pricing Prospectus and to enter into and perform its obligations under this Agreement, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns
or leases properties or conducts any business so as to require such qualification, except where the failure so to qualify or be
in good standing would not have a material adverse effect on the Company and its subsidiaries, considered as one enterprise;
(vi) Each
subsidiary of the Company (each a “Subsidiary”) has been duly incorporated (or organized) and is validly existing as
a corporation (or other organization) in good standing under the laws of the jurisdiction of its incorporation (or organization),
with power and authority to own, lease and operate its properties and conduct its business as described in the Pricing Prospectus,
and has been duly qualified as a foreign corporation (or other organization) for the transaction of business and is in good standing
under the laws of each other jurisdiction in which its owns or leases properties or conducts any business so as to require such
qualification, except where the failure so to qualify or be in good standing would not have a material adverse effect on the Company
and the Subsidiaries, considered as one enterprise; all of the issued and outstanding capital stock (or other ownership interests)
of each Subsidiary has been duly and validly authorized and issued, is fully paid and non-assessable and is owned by the Company,
directly or through Subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity;
(vii) The
Company has an authorized capitalization as set forth in the Pricing Prospectus, and all of the issued and outstanding shares of
capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to
the descriptions thereof contained in the Pricing Prospectus; and none of the issued and outstanding shares of capital stock of
the Company are subject to any preemptive or similar rights;
(viii) The
Shares have been duly and validly authorized and, when issued and delivered to and paid for by the Underwriters in accordance with
the terms of this Agreement, will be duly and validly issued and fully paid and non-assessable and will conform to the descriptions
thereof contained in the Prospectus; and the issuance of such Shares is not subject to any preemptive or similar rights;
(ix) This
Agreement has been duly authorized, executed and delivered by the Company;
(x) The
issue and sale of the Shares, the execution of this Agreement by the Company and the compliance by the Company with all of the
provisions of this Agreement and the consummation of the transactions herein contemplated will not (A) conflict with or result
in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which the
Company or any of the Subsidiaries is bound or to which any of the property or assets of the Company or any of the Subsidiaries
is subject, (B) result in any violation of the provisions of the certificate or articles of incorporation or by-laws (or other
organization documents) of the Company or any of the Subsidiaries or (C) result in the violation of any statute or any order, rule
or regulation of any court or governmental agency or body having jurisdiction over the Company or any of the Subsidiaries or any
of their properties, except in the case of clause (A) as would not, individually or in the aggregate, reasonably be expected to
result in a material adverse effect on the general affairs, business, prospects, management, financial position, shareholders’
equity or results of operations of the Company and the Subsidiaries, considered as one enterprise; and no consent, approval, authorization,
order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale
of the Shares or the consummation by the Company of the transactions contemplated by this Agreement, except the registration under
the Securities Act of the Shares and such consents, approvals, authorizations, registrations or qualifications as may be required
by Nasdaq Inc. or FINRA or under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares
by the Underwriters;
(xi) Crowe
LLP, who have certified certain financial statements of the Company and the Subsidiaries are independent public accountants as
required by the Securities Act and the Rules and Regulations. The financial statements, together with related schedules and notes,
included in the Registration Statement and the Pricing Prospectus comply in all material respects with the requirements of the
Securities Act and present fairly the consolidated financial position, results of operations and changes in financial position
of the Company and the Subsidiaries on the basis stated in the Registration Statement at the respective dates or for the respective
periods to which they apply; such statements and related schedules and notes have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods involved, except as disclosed therein; and the selected financial
data and the summary financial data included in the Pricing Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with that of the financial statements included in the Registration Statement. The pro forma financial
statements of the Company and the Subsidiaries and the related notes thereto included in the Registration Statement and the Pricing
Prospectus present fairly the information shown therein, have been prepared in accordance with the Commission’s rules and
guidelines with respect to pro forma financial statements and have been properly compiled on the bases described therein, and the
assumptions used in the preparation thereof are reasonable and the adjustments used therein are appropriate to give effect to the
transactions and circumstances referred to therein. 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;
(xii) Neither
the Company nor any Subsidiary has sustained since the date of the latest audited financial statements included in the Pricing
Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated
in the Pricing Prospectus; and, since the respective dates as of which information is given in the Registration Statement and the
Pricing Prospectus, (1) there has not been any change in the capital stock or long-term debt of the Company or any of the Subsidiaries,
(2) there has not been any material adverse change, or any development involving a prospective material adverse change, in or affecting
the general affairs, business, prospects, management, financial position, shareholders’ equity or results of operations of
the Company and the Subsidiaries, considered as one enterprise, (3) there have been no transactions entered into by, and no obligations
or liabilities, contingent or otherwise, incurred by the Company or any of the Subsidiaries, whether or not in the ordinary course
of business, which are material to the Company and the Subsidiaries, considered as one enterprise or (4) there has been no dividend
or distribution of any kind declared, paid or made by the Company on any class of its capital stock, in each case, otherwise than
as set forth or contemplated in the Pricing Prospectus;
(xiii) Neither
the Company nor any of the Subsidiaries is (1) in violation of its certificate or articles of incorporation or bylaws (or other
organization documents) or (2) in violation of any law, ordinance, administrative or governmental rule or regulation applicable
to the Company or any of the Subsidiaries, or (3) in violation of any decree of any court or governmental agency or body having
jurisdiction over the Company or any of the Subsidiaries, or (4) in default in the performance of any obligation, agreement or
condition contained in any bond, debenture, note or any other evidence of indebtedness or in any agreement, indenture, lease or
other instrument to which the Company or any of the Subsidiaries is a party or by which any of them or any of their respective
properties may be bound, except, in the case of clauses (2), (3) and (4), where any such violation or default, individually or
in the aggregate, would not have a material adverse effect on the general affairs, business, prospects, management, financial position,
shareholders’ equity or results of operations of the Company and the Subsidiaries, considered as one enterprise;
(xiv) Each
of the Company and each Subsidiary has good and marketable title to all real and personal property owned by it, in each case free
and clear of all liens, encumbrances and defects except such as are described in the Pricing Prospectus or such as do not materially
affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company
or any Subsidiary; and any real property and buildings held under lease by the Company or any Subsidiary are held under valid,
subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed
to be made of such property and buildings by the Company or any Subsidiary;
(xv) Other
than as set forth in the Pricing Prospectus, there are no legal or governmental proceedings pending to which the Company or any
of the Subsidiaries is a party or of which any property of the Company or any of the Subsidiaries is the subject which, if determined
adversely to the Company or the Subsidiary, individually or in the aggregate, would have or may reasonably be expected to have
a material adverse effect on the general affairs, business, prospects, management, financial position, shareholders’ equity
or results of operations of the Company and the Subsidiaries, considered as one enterprise, or would prevent or impair the consummation
of the transactions contemplated by this Agreement, or which are required to be described in the Registration Statement or the
Pricing Prospectus; and, to the best of the Company’s knowledge, no such proceedings are threatened or contemplated by governmental
authorities or others;
(xvi) The
Company and the Subsidiaries possess all permits, licenses, approvals, consents and other authorizations (collectively, “Permits”)
issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the businesses now
operated by them, except where the failure to possess any such Permit would not, individually or in the aggregate, have a material
adverse effect on the general affairs, business, prospects, management, financial position, shareholders’ equity or results
of operations of the Company and the Subsidiaries, considered as one enterprise; the Company and the Subsidiaries are in compliance
with the terms and conditions of all such Permits and all of the Permits are valid and in full force and effect, except, in each
case, where the failure so to comply or where the invalidity of such Permits or the failure of such Permits to be in full force
and effect, individually or in the aggregate, would not have a material adverse effect on the general affairs, business, prospects,
management, financial position, shareholders’ equity or results of operations of the Company and the Subsidiaries, considered
as one enterprise; and neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation
or material modification of any such Permits;
(xvii) The
Company and the Subsidiaries own all rights in, or possess, or can acquire on reasonable terms, licenses to all copyrights, software,
trade secrets, mask works, know-how, Internet domain names; trademarks, service marks, trade names, and other indicia of origin;
and inventions (whether or not patentable), patents and patent rights (collectively “Intellectual Property”) material
to carrying on their businesses as described in the Pricing Prospectus. Neither the Company nor any Subsidiary has received any
correspondence relating to, or notice of, any misappropriation, infringement of or other violation of or conflict with the rights
of others in any Intellectual Property, and to the knowledge of the Company there is no and has been no such misappropriation,
infringement, violation or conflict. Neither the Company nor any Subsidiary has received any correspondence relating to, or notice
of any allegation that any Intellectual Property owned by or held for use by the Company is invalid or inadequate to protect the
interest of the Company and the Subsidiaries, or any challenge to the Company or any Subsidiary’s ownership of any Intellectual
Property, and to the knowledge of the Company there is no valid basis for any such allegation or challenge. The Company has taken
all reasonable steps to protect, maintain and safeguard its Intellectual Property, including the execution of appropriate nondisclosure
and confidentiality agreements;
(xviii) No
material labor dispute with the employees of the Company or the Subsidiaries exists, or, to the knowledge of the Company, is imminent.
The Company is not aware of any existing or imminent labor disturbance by the employees of any of its or any Subsidiary’s
principal suppliers, manufacturers, customers or contractors, which, individually or in the aggregate, may reasonably be expected
to result in a material adverse effect on the general affairs, business, prospects, management, financial position, shareholders’
equity or results of operations of the Company and the Subsidiaries, considered as one enterprise;
(xix) The
Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which they are engaged; neither the Company nor any Subsidiary has
been refused any insurance coverage sought or applied for; and the Company has no reason to believe that either it or any Subsidiary
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 on the Company
and the Subsidiaries, considered as one enterprise;
(xx) The
Company and each of its Subsidiaries have made and keep books, records and accounts, which, in reasonable detail, accurately and
fairly reflect the transactions and dispositions of the assets of the Company and its Subsidiaries. The Company maintains a system
of internal accounting controls sufficient to provide reasonable assurance that (1) transactions are executed in accordance with
management’s general or specific authorizations; (2) transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to maintain accountability for assets; (3) access to
assets is permitted only in accordance with management’s general or specific authorization; (4) the recorded accountability
for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences;
and (5) the interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration
Statement is in conformity with generally accepted accounting principles and is updated as necessary to comply in all material
respects with the requirements of the Securities Act and the Commission’s rules and guidelines applicable thereto and present
fairly the consolidated financial position, results of operations and changes in financial position of the Company and the Subsidiaries
on the basis stated in the Registration Statement at the respective dates or for the respective periods to which they apply;
(xxi) Since the date
of the latest audited financial statements included in the Pricing Prospectus, (a) the Company has not been advised of (1) any
significant deficiencies in the design or operation of internal controls that could adversely affect the ability of the Company
and each of its Subsidiaries to record, process, summarize and report financial data, or any material weaknesses in internal controls
and (2) any fraud, whether or not material, that involves management or other employees who have a significant role in the internal
controls of the Company and each of its Subsidiaries, and (b) since that date, there has been no change in the Company’s
internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s
internal control over financial reporting;
(xxii) The
Company maintains disclosure controls and procedures (as such term is defined in Rule 13a-15 (e) of the Exchange Act) that comply
with the requirements of the Exchange Act; such disclosure controls and procedures are effective;
(xxiii) All
United States federal income tax returns of the Company and the Subsidiaries required by law to be filed have been filed and all
taxes shown by such returns or otherwise assessed, which are due and payable, have been paid, except assessments against which
appeals have been or will be promptly taken and as to which adequate reserves have been provided. The Company and the Subsidiaries
have filed all other tax returns that are required to have been filed by them pursuant to applicable foreign, state, local or other
law, except insofar as the failure to file such returns, individually or in the aggregate, would not result in a material adverse
effect on the general affairs, business, prospects, management, financial position, shareholders’ equity or results of operations
of the Company and the Subsidiaries, considered as one enterprise, and have paid all taxes due pursuant to such returns or pursuant
to any assessment received by the Company or any Subsidiary except for such taxes, if any, as are being contested in good faith
and as to which adequate reserves have been provided. The charges, accruals and reserves on the books of the Company and the Subsidiaries
in respect of any income and corporation tax liability for any years not finally determined are adequate to meet any assessments
or re-assessments for additional income tax for any years not finally determined;
(xxiv) There
are no statutes, regulations, documents or contracts of a character required to be described in the Registration Statement or the
Pricing Prospectus or to be filed as an exhibit to the Registration Statement which are not described or filed as required;
(xxv) Neither
the Company nor any of the Subsidiaries is in violation of any statute or any rule, regulation, decision or order of any governmental
agency or body or any court, domestic or foreign, relating to the use, production, disposal or release of hazardous or toxic substances
or relating to the protection or restoration of the environment or human exposure to hazardous or toxic substances (collectively,
“environmental laws”), owns or operates any real property contaminated with any substance that is subject to any environmental
laws, is liable for any off-site disposal or contamination pursuant to any environmental laws, or is subject to any claim relating
to any environmental laws, which violation, contamination, liability or claim, individually or in the aggregate, would have a material
adverse effect on the general affairs, business, prospects, management, financial position, shareholders’ equity or results
of operations of the Company and the Subsidiaries, considered as one enterprise; and the Company is not aware of any pending investigation
which might lead to such a claim;
(xxvi) Each
employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”),
that is maintained, administered or contributed to by the Company or any Subsidiary for employees or former employees of the Company
and its affiliates has been maintained in compliance with its terms and the requirements of any applicable statutes, orders, rules
and regulations, including but not limited to ERISA and the Internal Revenue Code of 1986, as amended (the “Code”),
except to the extent that failure to so comply, individually or in the aggregate, would not have a material adverse effect on the
general affairs, business, prospects, management, financial position, shareholders’ equity or results of operations of the
Company and the Subsidiaries, considered as one enterprise. No prohibited transaction, within the meaning of Section 406 of ERISA
or Section 4975 of the Code has occurred with respect to any such plan excluding transactions effected pursuant to a statutory
or administrative exemption;
(xxvii) Neither the
Company nor any of its Subsidiaries, or any director, officer, agent, employee or other person associated with or acting on behalf
of the Company or any of its Subsidiaries, has (i) used any corporate funds for any unlawful contribution, gift, entertainment
or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds, (iii) violated or is in violation of any provision of the Foreign Corrupt
Practices Act of 1977, or (iv) made any bribe, unlawful rebate, payoff, influence payment, kickback or other unlawful payment;
(xxviii) There is and
has been no failure on the part of the Company or any of the Company’s directors or officers, in their capacities as such,
to comply with any provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith,
including Section 402 related to loans and Sections 302 and 906 related to certifications;
(xxix) There
are no persons with registration rights or other similar rights to have securities registered pursuant to the Registration Statement;
(xxx) The
Company is not and, after giving effect to the offering and sale of the Shares as contemplated herein and the application of
the net proceeds therefrom as described in the Pricing Prospectus, will not be an “investment company”, as such
term is defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”);
(xxxi) The
Company has not distributed and, prior to the later to occur of the Closing Date (as defined in Section 4 hereof) and completion
of distribution of the Shares, will not distribute any offering materials in connection with the offering and sale of the Shares,
other than the Pricing Prospectus, the Prospectus and, subject to compliance with Section 6 hereof, any Issuer Free Writing Prospectus;
and the Company has not taken and will not take, directly or indirectly, any action designed to cause or result in, or which constitutes
or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to
facilitate the sale of the Shares. The Company (a) has not alone engaged in any Testing-the-Waters Communication and (b) has not
authorized anyone other than the Representative to engage in Testing-the-Waters Communications. The Company reconfirms that the
Representative has been authorized to act on its behalf in undertaking Testing-the-Waters Communications. The Company has not distributed
any Written Testing-the-Waters Communications other than those listed on Schedule II hereto. “Written Testing-the-Waters
Communication” means any Testing-the-Waters Communication that is a written communication within the meaning of Rule 405
under the Securities Act;
(xxxii) The statistical
and market and industry-related data included in the Pricing Prospectus and the Prospectus are based on or derived from sources
which the Company believes to be reliable and accurate or represent the Company’s good faith estimates that are made on the
basis of data derived from such sources, and the Company has obtained the written consent to the use of such data from sources
to the extent required;
(xxxiii) The
Company’s information technology assets and equipment, computers, systems, networks, hardware, software, websites, applications,
and databases (collectively, “IT Systems”) are adequate for, and operate and perform in all material respects as required
in connection with the operation of the business of the Company as currently conducted, and to the knowledge of the Company are
free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants. The Company has
implemented and maintained or caused to be implemented and maintained commercially reasonable controls, policies, procedures, and
safeguards to maintain and protect their material confidential information and the integrity, continuous operation, redundancy
and security of all IT Systems and data (including all personal, personally identifiable, sensitive, confidential or regulated
data (“Personal Data”)) used in connection with its businesses, and there have been no breaches, violations, outages
or unauthorized uses of or accesses to same, except for those that have been remedied without material cost or liability or the
duty to notify any other person, nor any incidents under internal review or investigations relating to the same. The Company is
presently in material compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court
or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and
security of IT Systems and Personal Data and to the protection of such IT Systems and Personal Data from unauthorized use, access,
misappropriation or modification. The Company has taken all necessary actions to comply with the European Union General Data Protection
Regulation and all other applicable laws and regulations with respect to Personal Data that have been announced as of the date
hereof as becoming effective within 12 months after the date hereof, and for which any non-compliance with same would be reasonably
likely to create a material liability.
(xxxiv) Any certificate
signed by any officer of the Company delivered to the Underwriters or to counsel for the Underwriters shall be deemed a representation
and warranty by the Company to the Underwriters as to the matters covered thereby.
2. Subject
to the terms and conditions herein set forth, (a) the Company agrees to sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at a purchase price per share of $1.41 (the “Purchase Price”),
the number of Firm Shares (to be adjusted by you so as to eliminate fractional shares) determined by multiplying the aggregate
number of Firm Shares to be sold by the Company hereunder by a fraction, the numerator of which is the aggregate number of Firm
Shares to be purchased by such Underwriter as set forth opposite the name of such Underwriter in Schedule I hereto and the denominator
of which is the aggregate number of Firm Shares to be purchased by all of the Underwriters from the Company hereunder and (b) in
the event and to the extent that the Underwriters shall exercise the election to purchase Option Shares as provided below, the
Company agrees to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase
from the Company, at the Purchase Price, the number of Option Shares (to be adjusted by you so as to eliminate fractional shares)
determined by multiplying the number of Option Shares as to which such election shall have been exercised by the fraction set forth
in clause (a) above.
The Company hereby grants
to the Underwriters the right to purchase at their election up to 2,500,000 Option Shares, at the Purchase Price. The Underwriters
may exercise their option to acquire Option Shares in whole or in part from time to time only by written notice from the Representative
to the Company, given within a period of 30 calendar days after the date of this Agreement and setting forth the aggregate number
of Option Shares to be purchased and the date on which such Option Shares are to be delivered, as determined by the Representative
but in no event earlier than the Closing Date or, unless the Representative and the Company otherwise agree in writing, earlier
than two or later than ten business days after the date of such notice.
3. It
is understood that the several Underwriters propose to offer the Firm Shares for sale to the public upon the terms and conditions
set forth in the Prospectus.
4. The
Company will deliver the Firm Shares to the Representative through the facilities of the Depository Trust Company (“DTC”)
for the accounts of the Underwriters, against payment of the purchase price therefor in Federal (same day) funds by official bank
check or checks or wire transfer drawn to the order of the Company, at 10:00 A.M., New York time, on February 11, 2020, or at such
other time not later than seven full business days thereafter as Stifel, Nicolaus & Company, Incorporated (“Stifel”)
and the Company determine, such time being herein referred to as the “Closing Date”. For purposes of Rule 15c6-1 under
the Exchange Act, the Closing Date (if later than the otherwise applicable settlement date) shall be the settlement date for payment
of funds and delivery of securities for all the Firm Shares. The Firm Shares so to be delivered will be in definitive or book-entry
form, in such denominations and registered in such names as the Representative requests and the certificates, if any, representing
the Firm Shares will be made available for checking and packaging at a location as the Representative may designate at least 24
hours prior to the Closing Date.
Each time for the delivery
of and payment for the Option Shares, being herein referred to as an “Option Closing Date”, which may be the Closing
Date, shall be determined by the Representative as provided above. The Company will deliver the Option Shares being purchased on
each Option Closing Date to the Representative through the facilities of DTC for the accounts of the Underwriters, against payment
of the purchase price therefor in Federal (same day) funds by official bank check or checks or wire transfer drawn to the order
of the Company, at 10:00 A.M., New York time on the applicable Option Closing Date. The Option Shares so to be delivered will be
in definitive or book-entry form, in such denominations and registered in such names as the Representative requests and the certificates,
if any, representing the Option Shares will be made available for checking and packaging at a location as the Representative may
designate at least 24 hours prior to the Option Closing Date.
5. The
Company covenants and agrees with each of the Underwriters as follows:
(a) The
Company, subject to Section 5(b), will comply with the requirements of Rule 430A under the Securities Act, and will notify the
Representative immediately, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement
shall become effective, or any supplement to the Prospectus or any amended prospectus shall have been filed, to furnish the Representative
with copies thereof, and to file promptly all material required to be filed by the Company with the Commission pursuant to Rule
433(d) under the Securities Act, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission
for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information,
and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any
order preventing or suspending the use of any Preliminary Prospectus, or of the suspension of the qualification of the Shares for
offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The Company
will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing
by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable
effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest
possible moment.
(b) The
Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including
any filing under Rule 462(b) under the Securities Act), or any amendment, supplement or revision to the Prospectus, or any Issuer
Free Writing Prospectus, will furnish the Representative with copies of any such documents a reasonable amount of time prior to
such proposed filing or use, as the case may be, and will not file or use any such document to which the Representative or counsel
for the Underwriters shall reasonably object.
(c) The
Company will use its best efforts to qualify the Shares for offering and sale under the securities laws of such jurisdictions as
you may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions
for as long as may be necessary to complete the distribution of the Shares, provided that nothing in this Section 5(c) shall require
the Company to qualify as a foreign corporation in any jurisdiction in which it is not already so qualified, or to file a general
consent to service of process in any jurisdiction.
(d) The
Company has furnished or will deliver upon request to the Representative, without charge, signed copies of the Initial Registration
Statement as originally filed, any Rule 462(b) Registration Statement and of each amendment to each (including exhibits filed therewith
or incorporated by reference therein) and signed copies of all consents and certificates of experts, and will also, upon your request,
deliver to the Representative, without charge, a conformed copy of the Registration Statement as originally filed and of each amendment
thereto (without exhibits) for each of the Underwriters. The copies of the Registration Statement and each amendment thereto furnished
to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR,
except to the extent permitted by Regulation S-T.
(e) The
Company has delivered to each Underwriter, without charge, as many written and electronic copies of each Preliminary Prospectus
as such Underwriter reasonably requested, and the Company hereby consents to the use of such copies for purposes permitted by the
Securities Act. The Company will furnish to each Underwriter, without charge, prior to 5:00 P.M. (Eastern time) on the business
day next succeeding the date of this Agreement and from time to time thereafter during the period when the Prospectus is required
to be delivered in connection with sales of the Shares under the Securities Act or the Exchange Act or in lieu thereof, the notice
referred to in Rule 173(a) under the Securities Act, such number of written and electronic copies of the Prospectus (as amended
or supplemented) as such Underwriter may reasonably request. The Prospectus and any amendments or supplements thereto furnished
to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR,
except to the extent permitted by Regulation S-T.
(f) The
Company will comply with the Securities Act and the Rules and Regulations so as to permit the completion of the distribution of
the Shares as contemplated in this Agreement and in the Prospectus. If at any time when, in the opinion of counsel for the Underwriters,
a prospectus is required to be delivered in connection with sales of the Shares under the Securities Act or the Exchange Act (or
in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act), any event shall occur or condition shall exist
as a result of which it is necessary, in the opinion of counsel for the Underwriters or for the Company, to amend the Registration
Statement or amend or supplement the Prospectus in order that the Prospectus will not include any untrue statements of a material
fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances
existing at the time it (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is delivered to a
purchaser, or if it shall be necessary, in the opinion of either such counsel, at any such time to amend the Registration Statement
or amend or supplement the Prospectus in order to comply with the requirements of the Securities Act or the Rules and Regulations,
the Company will promptly prepare and file with the Commission, subject to Section 5(b), such amendment or supplement as may be
necessary to correct such statement or omission or to make the Registration Statement or the Prospectus comply with such requirements,
and the Company will furnish to the Underwriters such number of written and electronic copies of such amendment or supplement as
the Underwriters may reasonably request. The Company will provide the Representative with notice of the occurrence of any event
during the period specified above that may give rise to the need to amend or supplement the Registration Statement or the Prospectus
as provided in the preceding sentence promptly after the occurrence of such event. If at any time following the distribution of
any Written Testing-the-Waters Communication there occurred or occurs an event or development as a result of which such Written
Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state
a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent
time, not misleading, the Company will promptly notify the Representative and will promptly amend or supplement, at its own expense,
such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission.
(g) The
Company will make generally available (within the meaning of Section 11(a) of the Securities Act) to its security holders and to
the Representative as soon as practicable, but not later than 45 days after the end of its fiscal quarter in which the first anniversary
date of the effective date of the Registration Statement occurs, an earnings statement (in form complying with the provisions of
Rule 158 under the Securities Act) covering a period of at least twelve consecutive months beginning after the effective date of
the Registration Statement.
(h) The
Company will use the net proceeds received by it from the sale of the Shares in the manner specified in the Pricing Prospectus
under the heading “Use of Proceeds”.
(i) The
Company will use its best efforts to effect and maintain the listing of the Common Stock (including the Shares) on the Nasdaq Capital
Market.
(j) During
a period of 90 days from the date of the Prospectus (the “Lock-Up Period”), the Company will not, without the prior
written consent of Stifel, (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase, lend or otherwise transfer or dispose of, directly or indirectly,
any Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or (ii) enter into any swap
or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of Common Stock, whether
any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities,
in cash or otherwise, other than (1) the Shares to be sold hereunder, (2) the issuance by the Company of shares of Common Stock
upon the exercise of an option or warrant or the settlement of restricted stock units or any other stock-based awards outstanding
on the date hereof which is described in the Prospectus, (3) the grant by the Company of stock options, restricted stock units
or other stock-based awards (or the issuance of shares of Common Stock upon exercise or settlement thereof) to eligible participants
pursuant to employee benefit or equity incentive plans of the Company described in the Prospectus; provided that, prior to the
grant of any such stock options, restricted stock units or other stock-based awards pursuant to this clause (3) that vest within
the Lock-Up Period, each director or officer receiving such grant shall sign and deliver a lock-up agreement substantially in the
form of Exhibit A hereto.
(k) If
the Representative, in its sole discretion, agrees to release or waive the restrictions set forth in a “lock-up” agreement
described in Section 8(m) hereof for an officer or director of the Company and provides the Company with notice of the impending
release or waiver at least three business days before the effective date of the release or waiver, the Company agrees to announce
the impending release or waiver by a press release substantially in the form of Exhibit B hereto through a major news service at
least two business days before the effective date of the release or waiver.
(l) The
Company, during the period when the Prospectus is required to be delivered in connection with sales of the Shares under the Securities
Act or the Exchange Act (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act), will file all documents
required to be filed with the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act and
the rules and regulations of the Commission thereunder.
(m) The
Company will file with the Commission such information on Form 10-Q or Form 10-K as may be required pursuant to Rule 463 under
the Securities Act.
(n) During
a period of two years from the effective date of the Registration Statement, the Company will furnish to you copies of all reports
or other communications (financial or other) furnished to shareholders generally, and to deliver to you (i) as soon as they are
available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed, provided that the Company will be deemed to have furnished
such reports and financial statements to the extent they are filed on EDGAR; and (ii) such additional information concerning the
business and financial condition of the Company as you may from time to time reasonably request (such financial statements to be
on a consolidated basis to the extent the accounts of the Company and the Subsidiaries are consolidated in reports furnished to
its shareholders generally or to the Commission).
(o) If
the Company elects to rely upon Rule 462(b) under the Securities Act, the Company will file a Rule 462(b) Registration Statement
with the Commission in compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this Agreement, and at
the time of filing either to pay to the Commission the filing fee for the Rule 462(b) Registration Statement or to give irrevocable
instructions for the payment of such fee pursuant to Rule 111(b) under the Securities Act.
(p) If so requested by
the Representative, the Company shall cause to be prepared and delivered, at its expense, within one business day from the effective
date of this Agreement, to the Representative an “electronic Prospectus” to be used by the Underwriters in connection
with the offering and sale of the Shares. As used herein, the term “electronic Prospectus” means a form of the most
recent Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, and any amendment or supplement thereto, that
meets each of the following conditions: (i) it shall be encoded in an electronic format, satisfactory to the Representative, that
may be transmitted electronically by the Representative and the other Underwriters to offerees and purchasers of the Shares, (ii)
it shall disclose the same information as such paper Preliminary Prospectus, Issuer Free Writing Prospectus or the Prospectus,
as the case may be; and (iii) it shall be in or convertible into a paper format or an electronic format, satisfactory to the Representative,
that will allow investors to store and have continuously ready access to such Preliminary Prospectus, Issuer Free Writing Prospectus
or the Prospectus at any future time, without charge to investors (other than any fee charged for subscription to the Internet
generally). The Company hereby confirms that, if so requested by the Representative, it has included or will include in the Prospectus
filed with the Commission an undertaking that, upon receipt of a request by an investor or his or her representative, the Company
shall transmit or cause to be transmitted promptly, without charge, a paper copy of such paper Preliminary Prospectus, Issuer Free
Writing Prospectus or the Prospectus to such investor or representative.
6. (a) The Company
represents and agrees that, without the prior consent of the Representative, it 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; each
Underwriter represents and agrees that, without the prior consent of the Company and the Representative, it has not made and will
not make any offer relating to the Shares that would constitute a free writing prospectus; any such free writing prospectus the
use of which has been consented to by the Company and the Representative is listed on Schedule II hereto;
(b) The Company has complied and
will comply with the requirements of Rule 433 under the Securities Act applicable to any Issuer Free Writing Prospectus, including
timely filing with the Commission or retention where required and legending; the Company represents that it has satisfied and
agrees that it will satisfy the conditions under Rule 433 under the Securities Act to avoid a requirement to file with the Commission
any electronic road show;
(c) The Company agrees that if at
any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer
Free Writing Prospectus would conflict with the information in the Registration Statement, the Pricing Prospectus or the Prospectus
or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements
therein, in light of the circumstances then prevailing, not misleading, the Company will give prompt notice thereof to the Representative
and, if requested by the Representative, will prepare and furnish without charge to each Underwriter an Issuer Free Writing Prospectus
or other document which will correct such conflict, statement or omission; provided, however, that this obligation shall not apply
to any statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in strict conformity with information
furnished in writing to the Company by an Underwriter through the Representative expressly for use therein.
7. The
Company covenants and agrees with the several Underwriters that, whether or not the transactions contemplated by this Agreement
are consummated, the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this
Agreement, including (i) the fees, disbursements and expenses of the Company’s counsel, accountants and other advisors; (ii)
filing fees and all other expenses in connection with the preparation, printing and filing of the Registration Statement, each
Preliminary Prospectus, any Issuer Free Writing Prospectus and the Prospectus and amendments and supplements thereto and the mailing
and delivering of copies thereof to the Underwriters and dealers; (iii) the cost of printing or producing this Agreement, closing
documents (including any compilations thereof) and such other documents as may be required in connection with the offering, purchase,
sale and delivery of the Shares; (iv) all expenses in connection with the qualification of the Shares for offering and sale under
state securities laws as provided in Section 5(c), including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection with such qualification and in connection with the Blue Sky survey, if any, provided that such expenses
shall not exceed $5,000; (v) all fees and expenses in connection with listing the Common Stock (including the Shares) on the Nasdaq
Capital Market; (vi) the filing fees incident to, and the reasonable fees and disbursements of counsel for the Underwriters in
connection with, securing any required review by FINRA of the terms of the sale of the Shares; (vii) all fees and expenses in connection
with the preparation, issuance and delivery of the certificates representing the Shares to the Underwriters, including any stock
or other transfer taxes and any stamp or other duties payable upon the sale, issuance or delivery of the Shares to the Underwriters;
(viii) the cost and charges of any transfer agent or registrar; (ix) the transportation and other expenses incurred by the Company
in connection with presentations to prospective purchasers of Shares; and (x) all other costs and expenses of the Underwriters
incident to the performance of their obligations hereunder not otherwise specifically provided for herein, including the fees,
disbursements and other charges of counsel to the Underwriters (in addition to those set forth in clauses (iv) and (vi)); provided,
however, that in no event under this clause (x) shall the Company be required to pay or reimburse if paid by the Underwriters any
costs and expenses in excess of $100,000 in the aggregate.
8. The several obligations
of the Underwriters hereunder to purchase the Shares on the Closing Date or each Option Closing Date, as the case may be, are subject
to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The
Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time
period prescribed for such filing by the Rules and Regulations and in accordance with Section 5(a); all material required to be
filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the Commission within the applicable
time period prescribed for such filing by Rule 433 under the Securities Act; if the Company has elected to rely upon Rule 462(b)
under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 P.M., Washington, D.C. time,
on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof or
the Prospectus or any part thereof or any Issuer Free Writing Prospectus shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission or any state securities commission; and all requests for additional information
on the part of the Commission shall have been complied with to the Representative’s reasonable satisfaction.
(b) The
representations and warranties of the Company contained herein are true and correct on and as of the Closing Date or the Option
Closing Date, as the case may be, as if made on and as of the Closing Date or the Option Closing Date, as the case may be, and
the Company shall have complied with all agreements and all conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date or the Option Closing Date, as the case may be.
(c) Subsequent
to the execution and delivery of this Agreement and prior to the Closing Date or the Option Closing Date, as the case may be, there
shall not have occurred any downgrading, nor shall any notice have been given of (i) any downgrading, (ii) any intended or potential
downgrading or (iii) any review or possible change that does not indicate an improvement, in the rating accorded any securities
of or guaranteed by the Company or any Subsidiary by any “nationally recognized statistical rating organization”, as
such term is defined for purposes of Rule 436(g)(2) under the Securities Act.
(d) (i)
Neither the Company nor any Subsidiary shall have sustained since the date of the latest audited financial statements included
in the Pricing Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Registration
Statement and the Prospectus, (1) there shall not have been any change in the capital stock or long-term debt of the Company or
any Subsidiary or (2) there shall not have been any material adverse change, or any development that would reasonably be expected
to result in a prospective material adverse change, in or affecting the general affairs, business, prospects, management, financial
position, shareholders’ equity or results of operations of the Company and the Subsidiaries, considered as one enterprise,
the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representative so material and
adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered
at such Closing Date or Option Closing Date, as the case may be, on the terms and in the manner contemplated in the Pricing Prospectus.
(e) The
Representative shall have received on and as of the Closing Date or the Option Closing Date, as the case may be, a certificate
of two executive officers of the Company, at least one of whom has specific knowledge about the Company’s financial matters,
satisfactory to the Representative, to the effect (1) set forth in Sections 8 (b) (with respect to the respective representations,
warranties, agreements and conditions of the Company) and 8 (c), (2) that none of the situations set forth in clause (i) or (ii)
of Section 8 (d) shall have occurred and (3) that no stop order suspending the effectiveness of the Registration Statement has
been issued and to the knowledge of the Company, no proceedings for that purpose have been instituted or are pending or contemplated
by the Commission;
(f)
On the Closing Date or Option Closing Date, as the case may be, Stubbs Alderton & Markiles, LLP, counsel for
the Company, shall have furnished to the Representative its favorable written opinion with negative assurances, dated the
Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to counsel for the
Underwriters, to such effect as counsel for the Underwriters may reasonably request.
(g) At
the time of the execution of this Agreement and, if applicable, on the effective date of any post-effective amendment to the Registration
Statement filed subsequent to the date of this Agreement, Crowe LLP shall have furnished to the Representative a letter, dated
the date of delivery thereof, in form and substance satisfactory to the Representative, containing statements and information of
the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial
statements and certain financial information contained in the Registration Statement and the Prospectus.
(h) On
the Closing Date or Option Closing Date, as the case may be, the Representative shall have received from Crowe LLP a letter, dated
the Closing Date or such Option Closing Date, as the case may be, to the effect that they reaffirm the statements made in the letter
or letters furnished pursuant to Section 8(g), except that the specified date referred to shall be a date not more than three business
days prior to the Closing Date or such Option Closing Date, as the case may be.
(i) On
the Closing Date or Option Closing Date, as the case may be, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the
Underwriters, shall have furnished to the Representative its favorable opinion and negative assurance letter, dated the Closing
Date or the Option Closing Date, as the case may be, with respect to the due authorization and valid issuance of the Shares, the
Registration Statement, the Prospectus and other related matters as the Representative may reasonably request, and such counsel
shall have received such papers and information as they may reasonably request to enable them to pass upon such matters.
(j) The
Shares to be delivered on the Closing Date or Option Closing Date, as the case may be, shall have been approved for listing on
the Nasdaq Capital Market, subject to official notice of issuance.
(k) At
the time of the execution of this Agreement, dated the date hereof, and as of the Closing Date or the Option Closing Date, as the
case may be, the Representative shall have received a certificate of the Chief Financial Officer, in form and substance satisfactory
to the Representative.
(l) On
the Closing Date or Option Closing Date, as the case may be, SoCal IP Law Group LLP, intellectual property counsel for the Company,
shall have furnished to the Representative its favorable written opinion, dated the Closing Date or the Option Closing Date, as
the case may be, in form and substance satisfactory to the Representative.
(m) FINRA shall have
confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and conditions.
(n) The
Representative shall have received “lock-up” agreements, each substantially in the form of Exhibit A hereto, from each
individual or entity listed on Schedule III hereto and such agreements shall be in full force and effect on the Closing Date
or Option Closing Date, as the case may be.
(o) On
or prior to the Closing Date or Option Closing Date, as the case may be, the Company shall have furnished to the Representative
such further information, certificates and documents as the Representative shall reasonably request.
(p) On
or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading
in securities generally on the Nasdaq Capital Market; (ii) a suspension or material limitation in trading in the Company’s
securities on the Nasdaq Capital Market; (iii) a general moratorium on commercial banking activities declared by any of Federal,
Maryland or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services
in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United
States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political
or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the
judgment of the Representative makes it impracticable or inadvisable to proceed with the public offering or the delivery of the
Shares being delivered at such Closing Date or Option Closing Date, as the case may be, on the terms and in the manner contemplated
in the Prospectus;
If any condition specified
in this Section 8 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated, subject
to the provisions of Section 12, by the Representative by notice to the Company at any time at or prior to the Closing Date or
Option Closing Date, as the case may be, and such termination shall be without liability of any party to any other party, except
as provided in Section 12.
9. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who controls any Underwriter within the meaning of Section
15 of the Securities Act or Section 20(a) of the Exchange Act against any and all losses, liabilities, claims, damages and expenses
whatsoever as incurred (including without limitation, reasonable attorneys’ fees and any and all reasonable expenses whatsoever
incurred in investigating, preparing or defending against any litigation, commenced or threatened, or any claim whatsoever, and
any and all amounts paid in settlement of any claim or litigation), joint or several, to which they or any of them may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages or expenses (or actions
in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact contained
in the Initial Registration Statement, as originally filed or any amendment thereof, the Registration Statement, or any post-effective
amendment thereof, or arise out of or are based upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading, or (ii) any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or in any supplement
thereto or amendment thereof, any Issuer Free Writing Prospectus, any Written Testing-the-Waters Communication, or any “issuer
information” filed or required to be filed pursuant to Rule 433(d) under the Securities Act, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company will
not be liable in any such case to the extent that any such loss, liability, claim, damage or expense arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or alleged omission made in the Initial Registration Statement,
as originally filed or any amendment thereof, the Registration Statement, or any post-effective amendment thereof, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or in any supplement thereto or amendment thereof, any Issuer Free Writing
Prospectus, or any Written Testing-the-Waters Communication in reliance upon and in strict conformity with written information
furnished to the Company by or on behalf of any Underwriter through Stifel expressly for use therein, it being understood and agreed
that the only such information furnished by any Underwriter is the information described as such in Section 9(b) below.
(b) Each
Underwriter severally, and not jointly, agrees to indemnify and hold harmless the Company, each of the directors of the Company,
each of the officers of the Company who shall have signed the Registration Statement, and each other person, if any, who controls
the Company within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act, against any losses, liabilities,
claims, damages and expenses whatsoever as incurred (including without limitation, reasonable attorneys’ fees and any and
all reasonable expenses whatsoever incurred in investigating, preparing or defending against any litigation, commenced or threatened,
or any claim whatsoever, and any and all amounts paid in settlement of any claim or litigation), joint or several, to which they
or any of them may become subject under the Act, the Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages
or expenses (or actions in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement
of a material fact contained in the Initial Registration Statement, as originally filed or any amendment thereof, the Registration
Statement, or any post-effective amendment thereof, or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or (ii) any
untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Pricing Prospectus
or the Prospectus, or in any supplement thereto or amendment thereof, any Issuer Free Writing Prospectus or any Written Testing-the-Waters
Communication, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not
misleading, in each case to the extent, but only to the extent, that any such loss, liability, claim, damage or expense arises
out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in
reliance upon and in strict conformity with written information furnished to the Company by or on behalf of such Underwriter through
Stifel expressly for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists
of the following information in the Prospectus furnished on behalf of each Underwriter: the concession and reallowance figures
appearing in the first paragraph under the subheading “Commissions and Discounts” under the caption “Underwriting”
and the statements and information contained in the first, second, third, fourth and fifth paragraphs under the subheading “Short
Sales, Stabilizing Transactions, and Penalty Bids” under the caption “Underwriting”.
(c) Promptly
after receipt by an indemnified party under Section 9 (a) or 9 (b) of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the indemnifying party under such Section, notify each party against
whom indemnification is to be sought in writing of the commencement thereof (but the failure so to notify an indemnifying party
shall not relieve it from any liability which it may have under this Section 9). In case any such action is brought against any
indemnified party, and it notifies an indemnifying party of the commencement thereof, the indemnifying party will be entitled to
participate therein, and jointly with any other indemnifying party similarly notified, to the extent it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense
thereof with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnified party). Notwithstanding the foregoing, the indemnified party or parties shall have the right
to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless (i) the employment of such counsel shall have been authorized in writing by one of the indemnifying
parties in connection with the defense of such action, (ii) the indemnifying parties shall not have employed counsel to have charge
of the defense of such action within a reasonable time after notice of commencement of the action, or (iii) such indemnified party
or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional
to those available to one or all of the indemnifying parties (in which case the indemnifying parties shall not have the right to
direct the defense of such action on behalf of the indemnified party or parties), in any of which events such fees and expenses
shall be borne by the indemnifying parties. In no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations
or circumstances, which counsel, in the event of indemnified parties under Section 9 (a), shall be selected by Stifel. No indemnifying
party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry
of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such
settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out
of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act,
by or on behalf of any indemnified party.
(d) If
the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under
Section 9(a) or 9(b) in respect of any losses, liabilities, claims, damages or expenses (or actions in respect thereof) referred
to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of
such losses, liabilities, claims, damages or expenses (or actions in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and the Underwriters on the other from the offering of the Shares.
If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect
not only such relative benefits but also the relative fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses (or actions
in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Shares shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the Company bear to the total underwriting discounts
and commissions received by the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. 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 on the one hand or
the Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission.
The Company and the Underwriters
agree that it would not be just and equitable if contributions pursuant to this Section 9(d) were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 9(d). The amount paid or payable by an indemnified
party as a result of the losses, liabilities, claims, damages or expenses (or actions in respect thereof) referred to above in
this Section 9(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 9(d), no Underwriter shall
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 which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations in this Section 9(d) to contribute
are several in proportion to their respective underwriting obligations and not joint.
(e) The
obligations of the parties to this Agreements contained in this Section 9 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at law or in equity.
10. If
any Underwriter or Underwriters default in its or their obligations to purchase Shares hereunder on the Closing Date or any Option
Closing Date and the aggregate number of Shares that such defaulting Underwriter or Underwriters agreed but failed to purchase
does not exceed 10% of the total number of Shares that the Underwriters are obligated to purchase on such Closing Date or Option
Closing Date, as the case may be, the Representative may make arrangements satisfactory to the Company for the purchase of such
Shares by other persons, including any of the Underwriters, but if no such arrangements are made by such Closing Date or Option
Closing Date, as the case may be, the non-defaulting Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Shares that such defaulting Underwriters agreed but failed to purchase on such Closing Date
or Option Closing Date, as the case may be. If any Underwriter or Underwriters so default and the aggregate number of Shares with
respect to which such default or defaults occur exceeds 10% of the total number of Shares that the Underwriters are obligated to
purchase on such Closing Date or Option Closing Date, as the case may be, and arrangements satisfactory to the Representative and
the Company for the purchase of such Shares by other persons are not made within 36 hours after such default, this Agreement will
terminate, subject to the provisions of Section 12, without liability on the part of any non-defaulting Underwriter or the Company,
except as provided in Section 12. Nothing herein will relieve a defaulting Underwriter from liability for its default.
In the event of any such
default which does not result in a termination of this Agreement, either the Representative or the Company shall have the right
to postpone the Closing Date or the relevant Option Closing Date, as the case may be, for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Prospectus or in any other documents or arrangements. As
used in this Agreement, the term “Underwriter” includes any person substituted for an Underwriter under this Section
10.
11. Notwithstanding
anything herein contained, this Agreement (or the obligations of the several Underwriters with respect to any Option Shares which
have yet to be purchased) may be terminated, subject to the provisions of Section 12, in the absolute discretion of the Representative,
by notice given to the Company, if after the execution and delivery of this Agreement and prior to the Closing Date or the Option
Closing Date, as the case may be, (a) trading generally on the New York Stock Exchange, Nasdaq Global Select Market, Nasdaq Global
Market, or Nasdaq Capital Market shall have been suspended or materially limited, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices have been required, by any of said exchanges or by such system or by order of the Commission,
FINRA or any other governmental or regulatory authority, (b) trading of any securities of or guaranteed by the Company or any Subsidiary
shall have been suspended on any exchange or in any over-the-counter market, (c) a general moratorium on commercial banking activities
in New York or Maryland shall have been declared by Federal, New York State or Maryland State authorities or a new restriction
materially adversely affecting the distribution of the Firm Shares or the Option Shares, as the case may be, shall have become
effective, or (d) there has occurred any material adverse change in the financial markets in the United States or the international
financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving
a prospective change in national or international political, financial or economic conditions, in each case the effect of which
is such as to make it, in the judgment of the Representative, impracticable to market the Shares to be delivered on the Closing
Date or Option Closing Date, as the case may be, or to enforce contracts for the sale of the Shares.
If this Agreement is
terminated pursuant to this Section 11, such termination will be without liability of any party to any other party except as provided
in Section 12 hereof.
12. The
respective indemnities, agreements, representations, warranties and other statements of the Company or its officers and of the
several Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation,
or statement as to the results thereof, made by or on behalf of any Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of and payment for the Shares. If this Agreement is
terminated pursuant to Section 8, 10 or 11 or if for any reason the purchase of any of the Shares by the Underwriters is not consummated,
the Company shall remain responsible for the expenses to be paid or reimbursed by it pursuant to Section 7, the respective obligations
of the Company and the Underwriters pursuant to Section 9 and the provisions of Sections 12, 13 and 16 shall remain in effect and,
if any Shares have been purchased hereunder the representations and warranties in Section 1 and all obligations under Section 5
and Section 6 shall also remain in effect. If this Agreement shall be terminated by the Underwriters, or any of them, under Section
8 or otherwise because of any failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions
of this Agreement, or if for any reason the Company shall be unable to perform its obligations under this Agreement or any condition
of the Underwriters’ obligations cannot be fulfilled, the Company agrees to reimburse the Underwriters or such Underwriters
as have so terminated this Agreement with respect to themselves, severally, for all out-of-pocket expenses (including the fees
and expenses of its counsel) reasonably incurred by the Underwriter in connection with this Agreement or the offering contemplated
hereunder.
13. This
Agreement shall inure to the benefit of and be binding upon the Company and the Underwriters, the officers and directors of the
Company referred to herein, any controlling persons referred to herein and their respective successors and assigns. Nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any other person, firm or corporation any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision herein contained. No purchaser of Shares from any
Underwriter shall be deemed to be a successor or assign by reason merely of such purchase.
14. All
notices and other communications hereunder shall be in writing and shall be deemed to have been duly given upon receipt thereof
by the recipient if mailed or transmitted by any standard form of telecommunication. Notices to the Underwriters shall be given
to the Representative, c/o Stifel, Nicolaus & Company, Incorporated, 787 Seventh Avenue, 12th Floor, New York, NY
10019, Attention: Equity Capital Markets. Notices to the Company shall be given to it at Resonant Inc., 175 Cremona Drive, Suite
200, Goleta, CA 93117, Attention: Chief Executive Officer.
15. This
Agreement may be signed in counterparts, each of which shall be an original and all of which together shall constitute one and
the same instrument.
16. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO SUCH STATE’S
PRINCIPLES OF CONFLICTS OF LAWS.
17. The
parties hereby submit to the jurisdiction of and venue in the federal courts located in the City of New York, New York in connection
with any dispute related to this Agreement, any transaction contemplated hereby, or any other matter contemplated hereby.
18. In
the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime,
the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective
to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such
interest and obligation, were governed by the laws of the United States or a state of the United States. In the event that any
Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special
Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised
to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were
governed by the laws of the United States or a state of the United States. For purposes of this Section 18, a “BHC Act Affiliate”
has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. §
1841(k). “Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in,
and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and
interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and
interpreted in accordance with, 12 C.F.R. § 382.2(b). “Default Right” has the meaning assigned to that term in,
and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable. “U.S. Special Resolution
Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II
of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
19. The
Company acknowledges and agrees that (i) the purchase and sale of the Shares pursuant to this Agreement, including the determination
of the public offering price of the Shares and any related discounts and commissions, is an arm’s-length commercial transaction
between the Company on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process
leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company or its
respective stockholders, creditors, employees or any other party, (iii) no Underwriter has assumed an advisory or fiduciary responsibility
in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether
such Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company except
the obligations expressly set forth in this Agreement, and (iv) the Company has consulted its own legal and financial advisors
to the extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered
advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction
or the process leading thereto.
20. The
Company acknowledges that the Underwriters’ research analysts and research departments are required to be independent from
their respective investment banking divisions and are subject to certain regulations and internal policies, and that such Underwriters’
research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect
to the Company and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby
waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Underwriters with
respect to any conflict of interest that may arise from the fact that the views expressed by their independent research analysts
and research departments may be different from or inconsistent with the views or advice communicated to the Company by such Underwriters’
investment banking divisions. The Company acknowledges that each of the Underwriters is a full service securities firm and as such
from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers
and hold long or short positions in debt or equity securities of the companies that may be the subject of the transactions contemplated
by this Agreement.
21. Notwithstanding
anything herein to the contrary, the Company is authorized to disclose to any persons the U.S. federal and state income tax treatment
and tax structure of the potential transaction and all materials of any kind (including tax opinions and other tax analyses) provided
to the Company relating to that treatment and structure, without the Underwriters imposing any limitation of any kind. However,
any information relating to the tax treatment and tax structure shall remain confidential ( and the foregoing sentence shall not
apply) to the extent necessary to enable any person to comply with securities laws. For this purpose, “tax structure”
is limited to any facts that may be relevant to that treatment.
22. This
Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters,
or any of them, with respect to the subject matter hereof.
23. The
Company and each of the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all
right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
If the foregoing is
in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this
instrument will become a binding agreement among the Company and the Underwriters.
|
|
Very
truly yours,
|
|
|
|
|
|
RESONANT
INC.
|
|
|
|
|
|
By:
|
/s/
Martin S. McDermut
|
|
|
|
Name:
Martin S. McDermut
|
|
|
|
Title:
Chief Financial Officer
|
|
Accepted
as of the date hereof:
|
|
|
|
|
|
STIFEL,
NICOLAUS & COMPANY, INCORPORATED
|
|
|
|
|
|
By:
|
/s/ Keith Lister
|
|
|
|
Name: Keith Lister
|
|
|
|
Title: Managing Director, Head of Syndicate
|
|
For themselves and as Representative of
the
other Underwriters named in Schedule I
hereto
SCHEDULE I
|
Underwriter
|
|
Number of Firm Shares
to be Purchased
|
|
|
Stifel, Nicolaus & Company, Incorporated
|
|
|
12,500,001
|
|
|
National Securities Corporation
|
|
|
4,166,666
|
|
|
|
|
|
|
|
|
Total:
|
|
|
16,666,667
|
|
SCHEDULE II
Issuer Free Writing Prospectuses:
None
Written Testing-the-Waters Communication:
None
The following information is also included in the Pricing Disclosure
Package:
Number of Firm Shares to be Issued by the
Company: 16,666,667
Public Offering Price: $1.50 per share
SCHEDULE IIII
Individuals and Entities Providing Lock-Ups
Directors
Ruben Caballero
Michael Fox
George Holmes
Alan Howe
Jack Jacobs
Josh Jacobs
Jean Rankin
Robert Tirva
Officers
Martin McDermut
Robert Hammond
Dylan Kelly
Neal Fenzi
Stockholders
Park City Capital, LLC
EXHIBIT
A
lock-up
agreement
Resonant
Inc.
175 Cremona Drive, Suite 200
Goleta, California 93117
STIFEL,
NICOLAUS & COMPANY, Incorporated
c/o Stifel, Nicolaus & Company, Incorporated
787 Seventh Avenue, 12th Floor
New York, NY 10019
Ladies
and Gentlemen:
The
undersigned refers to the proposed Underwriting Agreement (the “Underwriting Agreement”) among Resonant Inc., a Delaware
corporation (the “Company”), Stifel Nicolaus & Company Incorporated and the several underwriters named therein
(the “Underwriters”). As an inducement to the Underwriters to execute the Underwriting Agreement in connection with
the proposed public offering of shares of the Company’s common stock, par value $0.001 per share (“Common Stock”),
pursuant to a Registration Statement on Form S-3 (the “Offering”), the undersigned hereby agrees that from the date
hereof and until 90 days after the public offering date set forth on the final prospectus used to sell the Common Stock (the “Public
Offering Date”) pursuant to the Underwriting Agreement (such 90 day period being referred to herein as the “Lock-Up
Period”), to which you are or expect to become parties, the undersigned will not (and will cause any spouse or immediate
family member of the spouse or the undersigned living in the undersigned’s household, any partnership, corporation or other
entity within the undersigned’s control, and any trustee of any trust that holds Common Stock or other securities of the
Company for the benefit of the undersigned or such spouse or family member not to) offer, sell, contract to sell (including any
short sale), pledge, hypothecate, establish an open “put equivalent position” within the meaning of Rule 16a-1(h)
under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), grant any option, right or warrant for
the sale of, purchase any option or contract to sell, sell any option or contract to purchase, or otherwise encumber, dispose
of or transfer, or grant any rights with respect to, directly or indirectly, any shares of Common Stock or securities convertible
into or exchangeable or exercisable for any shares of Common Stock, enter into a transaction which would have the same effect,
or enter into any swap, hedge or other arrangement that transfers, in whole or in part, any of the economic consequences of ownership
of the Common Stock, whether any such aforementioned transaction is to be settled by delivery of the Common Stock or such other
securities, in cash or otherwise, or publicly disclose the intention to make any such offer, sale, pledge or disposition, or to
enter into any such transaction, swap, hedge or other arrangement, without, in each case, the prior written consent of Stifel,
Nicolaus & Company, Incorporated (“Stifel”), which consent may be withheld in Stifel’s sole discretion.
If
the undersigned is an officer or director of the Company, (i) the undersigned agrees that the foregoing restrictions shall be
equally applicable to any issuer-directed or “friends and family” shares of Common Stock that the undersigned may
purchase in the proposed public offering; (ii) the Representatives agree that, at least three business days before the effective
date of any release or waiver of the foregoing restrictions in connection with a transfer of shares of Common Stock, the Representatives
will notify the Company of the impending release or waiver, and (iii) the Company has agreed in the Underwriting Agreement to
announce the impending release or waiver by press release through a major news service at least two business days before the effective
date of the release or waiver. Any release or waiver granted by the Representatives hereunder to any such officer or director
shall only be effective two business days after the publication date of such press release. The provisions of this paragraph
will not apply if (a) the release or waiver is effected solely to permit a transfer not for consideration and (b) the transferee
has agreed in writing to be bound by the same terms described in this Agreement to the extent and for the duration that such terms
remain in effect at the time of the transfer.
The
foregoing restrictions shall not apply to: (a) bona fide gifts by the undersigned, provided that (i) each resulting transferee
of the Company’s securities executes and delivers to Stifel an agreement satisfactory to Stifel certifying that such transferee
is bound by the terms of this Agreement and has been in compliance with the terms hereof since the date first above written as
if it had been an original party hereto and (ii) to the extent any interest in the Company’s securities is retained by the
undersigned (or such spouse or family member), such securities shall remain subject to the restrictions contained in this Agreement
and (b) exercises of stock options or warrants of the Company or the vesting of restricted stock units of the Company, provided
that any Common Stock received upon exercise of options or warrants or vesting or restricted stock units will also be subject
to this Agreement.
In
addition, the undersigned agrees that, during the period commencing on the date hereof and ending 90 days after the Public Offering
Date, without the prior written consent of Stifel (which consent may be withheld in its sole discretion): (a) the undersigned
will not request, make any demand for or exercise any right with respect to, the registration of any Common Stock or any security
convertible into or exercisable or exchangeable for Common Stock; and (b) the undersigned waives any and all notice requirements
and rights with respect to the registration of any such security pursuant to any agreement, understanding or otherwise to which
the undersigned is a party.
Any
Common Stock acquired by the undersigned in the open market on or after the Public Offering Date (except Common Stock acquired
pursuant to a “friends and family” or directed share program) will not be subject to this Agreement. A transfer of
Common Stock to a family member or a trust for the benefit of the undersigned or a family member may be made, provided the transferee
agrees in writing prior to such transfer to be bound by the terms of this Agreement as if it were a party hereto.
In
furtherance of the foregoing, the Company and its transfer agent and registrar are hereby authorized to (a) decline to make any
transfer of shares of Common Stock if such transfer would constitute a violation or breach of this Agreement and (b) place legends
and stop transfer instructions on any such shares of Common Stock owned or beneficially owned by the undersigned.
This
Agreement is irrevocable and shall be binding on the undersigned and the successors, heirs, personal representatives and assigns
of the undersigned. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without
regard to choice of law rules.
This
Agreement shall lapse and become null and void if the Company notifies you in writing that it does not intend to proceed with
the Offering or the Public Offering Date shall not have occurred on or before March 31, 2020.
|
|
Very
truly yours,
|
|
|
|
|
|
Printed
Name:
|
|
|
Date:
|
EXHIBIT
B
Form
of Press Release
RESONANT
INC.
[Date]
Resonant
Inc. (the “Company”) announced today that Stifel, Nicolaus & Company, Incorporated, the lead book-running managing
underwriter in the Company’s recent public offering of 16,666,667 shares of common stock, is [waiving] [releasing]
a lock-up restriction with respect to [●] shares of the Company’s common stock held by [certain officers or directors]
[an officer or director] of the Company. The [waiver] [release] will take effect on _________, 2020, and the
shares may be sold on or after such date.
This
press release is not an offer or sale of the securities in the United States or in any other jurisdiction where such offer or
sale is prohibited, and such securities may not be offered or sold in the United States absent registration or an exemption from
registration under the United States Securities Act of 1933, as amended.
