Banco Bradesco BBI S.A.
Banco Bradesco BBI S.A.
The undersigned,
Atlas Critical Minerals Corporation, a Republic of the Marshall Islands corporation (the “Company”), hereby confirms
its agreement (this “Agreement”) with A.G.P./Alliance Global Partners (“A.G.P.”) and Banco Bradesco
BBI S.A. (hereinafter referred to as “you” (including its correlatives) or the “Representatives” or, individually,
the “Representative”) and with the other underwriters named on Schedule 1 hereto (if any) for which the
Representatives are acting as representatives (the Representatives and such other underwriters being collectively called the “Underwriters”
or, individually, an “Underwriter”) as follows:
| 3 | Covenants
of the Company |
The
Company covenants and agrees as follows:
| 3.1 | Amendments
to Registration Statement. The Company shall deliver to the Representative, prior
to filing, any amendment or supplement to the Registration Statement, the Preliminary Prospectus,
the Pricing Disclosure Package or Prospectus proposed to be filed after the date of this
Agreement and not file any such amendment or supplement to which the Representatives
shall reasonably object in writing. |
| 3.2 | Federal
Securities Laws |
| 3.2.1 | Compliance.
The Company, subject to Section 3.2.2, shall comply with the requirements of Rule
424(b) and Rule 430A of the Securities Act Regulations, and will notify the Representatives
promptly, and confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement or any amendment or supplement to any Preliminary Prospectus, the
Pricing Disclosure Package or the Prospectus shall have been filed and when any post-effective
amendment to the Registration Statement shall become effective; (ii) of the receipt of any
comments from the Commission; (iii) of any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to any Preliminary Prospectus,
the Pricing Disclosure Package or the Prospectus, or for additional information; (iv) of
the issuance by the Commission of any stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment or of any order preventing or suspending the use
of any Preliminary Prospectus, the Pricing Disclosure Package or the 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 or of any examination
pursuant to Section 8(d) or 8(e) of the Securities Act concerning the Registration Statement
and (v) if the Company becomes the subject of a proceeding under Section 8A of the Securities
Act in connection with the Offering of the Shares. The Company shall effect all filings required
under Rule 424(b) of the Securities Act Regulations, in the manner and within the time period
required by Rule 424(b) (without reliance on Rule 424(b)(8)), and shall take such steps as
it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing
under Rule 424(b) was received for filing by the Commission and, in the event that it was
not, it will promptly file such prospectus. The Company shall use commercially reasonable
efforts to prevent the issuance of any stop order, prevention or suspension and, if any such
order is issued, to obtain the lifting thereof at the earliest possible moment. |
| 3.2.2 | Continued
Compliance. The Company shall comply with the Securities Act, the Securities Act
Regulations, the Exchange Act and the rules and regulations of the Commission promulgated
under the Exchange Act (the “Exchange Act Regulations”) so as to permit
the completion of the distribution of the Shares as contemplated in this Agreement and in
the Registration Statement, the Pricing Disclosure Package and the Prospectus. If at any
time when a prospectus relating to the Shares is (or, but for the exception afforded by Rule
172 of the Securities Act Regulations (“Rule 172”), would be) required
by the Securities Act to be delivered in connection with sales of the Shares, any event shall
occur or condition shall exist as a result of which it is necessary, in the opinion of counsel
for the Underwriters or for the Company, to (i) amend the Registration Statement in order
that the Registration Statement will not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make the statements
therein not misleading; (ii) amend or supplement the Pricing Disclosure Package or the Prospectus
in order that the Pricing Disclosure Package or the Prospectus, as the case may be, will
not include any untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in the light of the circumstances
existing at the time it is delivered to a purchaser or (iii) amend the Registration Statement
or amend or supplement the Pricing Disclosure Package or the Prospectus, as the case may
be, in order to comply with the requirements of the Securities Act or the Securities Act
Regulations, the Company will promptly (A) give the Representatives notice of such
event; (B) prepare any amendment or supplement as may be necessary to correct such statement
or omission or to make the Registration Statement, the Pricing Disclosure Package or the
Prospectus comply with such requirements and, a reasonable amount of time prior to any proposed
filing or use, furnish the Representatives with copies of any such amendment or supplement
and (C) file with the Commission any such amendment or supplement; provided that the Company
shall not file or use any such amendment or supplement to which the Representatives
or counsel for the Underwriters shall reasonably object. The Company will furnish to the
Underwriters such number of copies of such amendment or supplement as the Underwriters may
reasonably request. The Company shall give the Representatives notice of its intention
to make any filing pursuant to the Exchange Act or the Exchange Act Regulations from the
Applicable Time until the later of the Closing Date and the exercise in full or expiration
of the Over-Allotment Option specified in Section 1.2 hereof and will furnish the Representatives
with copies of the related document(s) a reasonable amount of time prior to such proposed
filing, as the case may be, and will not file or use any such document to which the Representatives
or counsel for the Underwriters shall reasonably object. |
| 3.3 | Delivery
to the Underwriters of Registration Statements. The Company has delivered or made
available or shall deliver or make available to the Underwriters and counsel for the Representative,
without charge, signed copies of the Registration Statement as originally filed and each
amendment thereto (including exhibits filed therewith or incorporated by reference therein)
and signed copies of all consents and certificates of experts, and will also deliver to the
Underwriters, without charge, a conformed copy of the Registration Statement as originally
filed and each amendment thereto (without exhibits) for each of the Underwriters. The copies
of the Registration Statement and each amendment thereto furnished to the Underwriters will
be identical to the electronically transmitted copies thereof filed with the Commission pursuant
to EDGAR, except to the extent permitted by Regulation S-T. |
| 3.4 | Delivery
to the Underwriters of Prospectuses. The Company has delivered or made available
or will deliver or make available to each Underwriter, without charge, as many copies of
each Preliminary Prospectus as such Underwriter reasonably requested, and the Company hereby
consents to the use of such copies for purposes permitted by the Securities Act. The Company
will furnish to each Underwriter, without charge, during the period when a prospectus relating
to the Shares is (or, but for the exception afforded by Rule 172, would be) required to be
delivered under the Securities Act, such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request. The Prospectus and any amendments
or supplements thereto furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T. |
| 3.5 | Events
Requiring Notice to the Representatives. The Company shall use commercially reasonable efforts to cause the Registration Statement
to remain effective with a current prospectus for at least nine (9) months after the Applicable Time, and shall notify the Representatives
promptly and confirm the notice in writing: (i) of the issuance by the Commission of any stop order or of the initiation, or the threatening,
of any proceeding for that purpose; (ii) of the issuance by any state securities commission of any proceedings for the suspension of
the qualification of the Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding
for that purpose; (iii) of the mailing and delivery to the Commission for filing of any amendment or supplement to the Registration Statement
or Prospectus; (iv) of the receipt of any comments or request for any additional information from the Commission; and (v) of the happening
of any event that, in the judgment of the Company, makes any statement of a material fact made in the Registration Statement, the Pricing
Disclosure Package or the Prospectus untrue or that requires the making of any changes in (a) the Registration Statement in order to
make the statements therein not misleading, or (b) in the Pricing Disclosure Package or the Prospectus in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading. If the Commission or any state securities commission
shall enter a stop order or suspend such qualification at any time, the Company shall make every reasonable effort to obtain promptly
the lifting of such order. |
| 3.6 | Exchange
Act Registration. For a period of three (3) years after the date of this Agreement,
the Company shall use its best efforts to maintain the registration of the Common Stock under
the Exchange Act. The Company shall not deregister the Common Stock under the Exchange Act
for a period of three (3) years after the date of this Agreement without the prior written
consent of the Underwriters, such consent not to be unreasonably withheld, provided, however,
in the event of (i) a sale of the Company; (ii) sale of substantially all assets of the Company;
or (iii) a transaction resulting in the purchase of all or substantially all Common Stock
of the Company (in either event, a “Fundamental Transaction”), the foregoing
covenant set forth in this Section 3.6 shall terminate; provided such deregistration is required
to effect the Fundamental Transaction. |
| 3.7 | Free
Writing Prospectuses. The Company agrees that, unless it obtains the prior written
consent of the Representative, it shall not make any offer relating to the Shares that would
constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free
writing prospectus,” or a portion thereof, required to be filed by the Company with
the Commission or retained by the Company under Rule 433. The Company represents that it
has treated or agrees that it will treat each such free writing prospectus consented to by
the Underwriters as an “issuer free writing prospectus,” as defined in Rule 433,
and that it has complied and will comply with the applicable requirements of Rule 433 with
respect thereto, including timely filing with the Commission where required, legending and
record keeping. If at any time following issuance of an Issuer Free Writing Prospectus there
occurred or occurs an event or development as a result of which such Issuer Free Writing
Prospectus conflicted or would conflict with the information contained in the Registration
Statement or included or would include an untrue statement of a material fact or omitted
or would omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances existing at that subsequent time, not misleading, the Company
will promptly notify the Underwriters and will promptly amend or supplement, at its own expense,
such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement
or omission. |
| 3.8 | Review
of Financial Statements. For a period of three (3) years after the date of this Agreement,
the Company, at its expense, shall cause its regularly engaged independent registered public
accounting firm to review (but not audit) the Company’s financial statements for the
first six month of each fiscal year (or other periods required under the Commission’s
rules on financial statements) immediately preceding the announcement of any such six months
(or other periods required) financial information, provided that such a provision shall not
prevent a sale, merger or similar transaction involving the Company. |
| 3.9 | Listing.
The Company shall use commercially reasonable efforts to maintain the listing of the Common
Stock (including the Shares) on the Exchange for at least three years from the date of this
Agreement. |
| 3.10 | Reports
to the Representative. |
| 3.10.1 | Periodic
Reports, etc. For a period of one year after the date of this Agreement, the Company
shall furnish to the Representatives copies of such financial statements and other
periodic and special reports as the Company from time to time furnishes generally to holders
of any class of its securities and also promptly furnish to the Representative: (i)
a copy of each periodic report the Company shall be required to file with the Commission
under the Exchange Act and the Exchange Act Regulations; (ii) a copy of every press release
and every news item and article with respect to the Company or its affairs which was released
by the Company; (iii) a copy of each Form 6-K prepared and filed by the Company; (iv) five
copies of each registration statement filed by the Company under the Securities Act; and
(v) such additional documents and information with respect to the Company and the affairs
of any future subsidiaries of the Company as the Representatives may from time to
time reasonably request; provided the Representatives shall sign, if requested by
the Company, a Regulation FD compliant confidentiality agreement which is reasonably acceptable
to the Representatives and Representatives Counsel in connection with the Representatives’
receipt of such information. Documents filed with the Commission pursuant to its EDGAR system
shall be deemed to have been delivered to the Representatives pursuant to this Section
3.10.1. |
| 3.10.2 | Transfer
Agent. For a period of three (3) years after the date of this Agreement, the Company
shall retain a transfer agent and registrar reasonably acceptable to the Representatives
(the “Transfer Agent”) and, for a period of one (1) year after the date
of this Agreement, shall furnish to the Representatives such transfer sheets of the
Company’s securities as the Representatives may reasonably request, including
the daily and monthly consolidated transfer sheets of the Transfer Agent and DTC. Vstock
Transfer, LLC is acceptable to the Representatives to act as Transfer Agent for the
Common Stock. |
| 3.11 | Payment
of Expenses. The Company agrees to pay on each of the Closing Date and the Option
Closing Date, if any, all expenses incident to the performance of the obligations of the
Company under this Agreement, including but not limited to (a) reasonable and documented
fees and expenses of the Representative’s legal counsel incurred in connection
with the Offering in an amount up to $200,000 and (b) up to $20,000 of the Representative’s
non-accountable expenses, including, but not limited to, IPREO software related expenses,
background check(s), tombstones, escrow agent fees, marketing-related expenses (i.e. roadshow,
travel, etc.) and any other expenses incurred by the Representatives in connection
with the transaction. |
| 3.12 | Application
of Net Proceeds. The Company shall apply the net proceeds from the Offering received
by it in a manner consistent with the application thereof described under the caption “Use
of Proceeds” in the Registration Statement, the Pricing Disclosure Package and the
Prospectus. |
| 3.13 | Exchange
Act. The Company shall make generally available to its security holders as soon as
practicable, but not later than the first day of the fifteenth (15th) full calendar month
following the date of this Agreement, an earnings statement (which need not be certified
by independent registered public accounting firm unless required by the Securities Act or
the Securities Act Regulations, but which shall satisfy the provisions of Rule 158(a) under
Section 11(a) of the Securities Act) covering a period of at least twelve (12) consecutive
months beginning after the date of this Agreement. |
| 3.14 | Stabilization.
The Company will not take, and will use its commercially reasonable best efforts to cause
its affiliates not to take, directly or indirectly, any action designed to or that has constituted
or that might reasonably be expected to cause or result in, under Regulation M of the Exchange
Act, or otherwise, stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Shares. |
| 3.15 | Internal
Controls. The Company shall maintain a system of internal accounting controls sufficient
to provide reasonable assurances that: (i) transactions are executed in accordance with management’s
general or specific authorization; (ii) transactions are recorded as necessary in order to
permit preparation of financial statements in accordance with GAAP and to maintain accountability
for assets; (iii) access to assets is permitted only in accordance with management’s
general or specific authorization; and (iv) the recorded accountability for assets is compared
with existing assets at reasonable intervals and appropriate action is taken with respect
to any differences. |
| 3.16 | Accountants.
As of the date of this Agreement, the Company shall continue to retain a nationally recognized
independent registered public accounting firm for a period of at least three (3) years after
the date of this Agreement. The Underwriters acknowledge that Pipara & Co LLP (the “Auditor”)
is acceptable to the Representative. |
| 3.17 | FINRA.
The Company shall advise the Representatives (who shall make an appropriate filing
with FINRA) if it is or becomes aware that Company or any of its affiliates (within the meaning
of FINRA’s Conduct Rule 5121(f)(1)) directly or indirectly controls, is controlled
by, or is under common control with, or is an associated person (within the meaning of Article
I, Section 1(ee) of the By-laws of FINRA) of, any member firm of FINRA. |
| 3.18 | Company
Lock-Up Agreements. |
| 3.18.1 | Restriction
on Sales of Shares. The Company, on behalf of itself and any successor entity, agrees
that, without the prior written consent of the Representative, it will not, for a period
of one hundred and eighty (180) days from the Closing Date (the “Lock-Up Period”),
(i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase
any option or contract to sell, grant any option, right or warrant to purchase, lend, or
otherwise transfer or dispose of, directly or indirectly, any shares of capital stock of
the Company or any securities convertible into or exercisable or exchangeable for shares
of capital stock of the Company; (ii) file or cause to be filed any registration statement
with the Commission relating to the offering of any shares of capital stock of the Company
or any securities convertible into or exercisable or exchangeable for shares of capital stock
of the Company; or (iii) enter into any swap or other arrangement that transfers to another,
in whole or in part, any of the economic consequences of ownership of capital stock of the
Company, whether any such transaction described in clause (i), (ii) or (iii) above is to
be settled by delivery of shares of capital stock of the Company or such other securities,
in cash or otherwise. The restrictions contained in this Section 3.18.1 shall not apply to
(i) the shares of Common Stock to be sold hereunder, (ii) the issuance by the Company of
shares of Common Stock upon the exercise of a stock option or warrant or the conversion of
a security outstanding on the date hereof, of which the Representatives has been advised
in writing, provided that such securities outstanding on the date hereof have not been amended
since the date of this Agreement to increase the number of such securities or to decrease
the exercise price, exchange price or conversion price of such securities (other than in
connection with stock splits or combinations) or to extend the term of such securities; (iii)
the issuance by the Company of stock options or shares of capital stock of the Company under
(A) any equity compensation plan of the Company to employees, officers, consultants or directors
of the Company for services rendered to the Company or (B) any stock options issued or to
be issued to certain shareholders of the Company as disclosed in the Prospectus; (iv) the
transfer, issuance, sale or disposition of shares of Common Stock or any security convertible
into or exercisable or exchangeable for shares of Common Stock pursuant to an investment
in which a single strategic investor (and not an organization primarily engaged in the business
of capital raising) that is, itself or through its subsidiaries, an operating company or
an owner of an asset in a business synergistic with the business of the Company and shall
provide to the Company additional benefits in addition to the investment of funds acquires
over twenty five percent (25%) of the fully diluted capitalization of the date thereof, provided
that such securities are issued as “restricted securities” (as defined in Rule
144) and carry no registration rights that require or permit the filing of any registration
statement in connection therewith during six (6) months following the Closing Date; or (v)
shares of Common Stock or other securities issued in connection with a transaction with an
unaffiliated third party that includes a bona fide commercial relationship entered into at
arms-length (including joint ventures, marketing or distribution arrangements, collaboration
agreements or intellectual property license agreements) or any acquisition of assets or acquisition
of not less than a majority or controlling portion of the equity of another entity provided
that any such transaction involves solely existing business segments or business scope that
the Company is already operating in as described in the Registration Statement, the Pricing
Disclosure Package or the Final Prospectus and provided that such shares of Common Stock
or other securities are issued as “restricted securities” (as defined in Rule
144) and carry no registration rights that require or permit the filing of any registration
statement in connection therewith during six (6) months following the Closing Date. |
| 3.18.2 | Blue
Sky Qualifications. The Company shall use its commercially reasonable efforts, in
cooperation with the Underwriters, if necessary, to qualify the Shares for offering and sale
under the applicable securities laws of such states and other jurisdictions (domestic or
foreign) as either Representative may designate and to maintain such qualifications
in effect so long as required to complete the distribution of the Shares; provided, however,
that the Company shall not be obligated to file any general consent to service of process
or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in
which it is not so qualified or to subject itself to taxation in respect of doing business
in any jurisdiction in which it is not otherwise so subject. |
| 3.19 | Reporting
Requirements. The Company, during the period when a prospectus relating to the Shares
is (or, but for the exception afforded by Rule 172, would be) required to be delivered under
the Securities Act, will file all documents required to be filed with the Commission pursuant
to the Exchange Act within the time periods required by the Exchange Act and Exchange Act
Regulations. Additionally, the Company shall report the use of proceeds from the issuance
of the Shares as may be required under Rule 463 under the Securities Act Regulations. |
| 4 | Conditions
of Underwriters’ Obligations. |
The
obligations of the Underwriters to purchase and pay for the Shares, as provided herein, shall be subject to (i) the continuing accuracy
in all material respects of the representations and warranties of the Company as of the date hereof and as of the Closing Date and the
Option Closing Date, if any; (ii) the accuracy of the statements of officers of the Company made pursuant to the provisions hereof; (iii)
the performance by the Company in all material respects of its obligations hereunder; and (iv) the following condition
| 4.1.1 | Effectiveness
of Registration Statement; Required Filings. The Registration Statement has been
declared effective by the Commission under the Securities Act and, at each of the Closing
Date and any Option Closing Date, no stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereto has been issued under the Securities Act,
no order preventing or suspending the use of any Preliminary Prospectus or the Prospectus
has been issued and no proceedings for any of those purposes have been instituted or are
pending or, to the Company’s knowledge, contemplated by the Commission. The Company
has complied with each request (if any) from the Commission for additional information. The
Prospectus containing the Rule 430A Information shall have been filed with the Commission
in the manner and within the time frame required by Rule 424(b) (without reliance on Rule
424(b)(8)) or a post-effective amendment providing such information shall have been filed
with, and declared effective by, the Commission in accordance with the requirements of Rule
430A under the Securities Act Regulations. |
| 4.1.2 | FINRA
Clearance. On or before the date of this Agreement, the Representatives (as required)
shall have received clearance from FINRA as to the amount of compensation allowable or payable
to the Underwriters as described in the Registration Statement. |
| 4.1.3 | Exchange
Stock Market Clearance. On the Closing Date, the Company’s Common Stock, including
the Firm Shares and the Option Shares, shall have been approved for listing on the Exchange,
subject only to official notice of issuance. |
| 4.2 | Company
Counsel Matters |
| 4.2.1 | Closing
Date Opinion of Counsel. On the Closing Date, the Underwriters shall have received
the opinion and negative assurance letter of Disclosure Law Group, counsel to the Company,
dated the Closing Date and addressed to the Representative, in form and substance reasonably
satisfactory to the Representative. |
| 4.2.2 | Closing
Date Opinion of Marshall Islands Counsel. On the Closing Date, the Underwriters shall
have received the opinion of Holland & Knight LLP, New York, New York, Marshall Islands
counsel to the Company, dated the Closing Date and addressed to the Representative, in form
and substance reasonably satisfactory to the Representative. |
| 4.2.3 | Option
Closing Date Opinion of Counsel. On the Option Closing Date, if any, the Underwriters
shall have received the favorable opinions of such counsels listed in Sections 4.2.1 and
4.2.2 dated as of the Option Closing Date, addressed to the Representatives and in
form and substance reasonably satisfactory to the Representative, confirming as of the Option
Closing Date, the statements made by such counsel in their respective opinion delivered on
the Closing Date. |
| 4.3.1.1 | Cold
Comfort Letter. At the time this Agreement is executed, you shall have received a
cold comfort letter containing statements and information of the type customarily included
in accountants’ comfort letters with respect to the financial statements and certain
financial information contained in the Registration Statement, the Pricing Disclosure Package
and the Prospectus, addressed to the Underwriters and in form and substance satisfactory
in all respects to you and to the Auditor, dated as of the date of this Agreement. |
| 4.3.1.2 | Bring-down
Comfort Letter. On the Closing Date and the Option Closing Date, you shall have received
from the Auditor a letter, dated as of the Closing Date or the Option Closing Date, as applicable,
to the effect that the Auditor reaffirms the statements made in the letter furnished pursuant
to Section 4.3.1, except that the specified date referred to shall be a date not more than
three (3) business days prior to the Closing Date or the Option Closing Date, as applicable. |
| 4.4 | Officers’
Certificates |
| 4.4.1 | Officers’
Certificate. The Company shall have furnished to the Underwriters a certificate,
dated the Closing Date and any Option Closing Date (if such date is other than the Closing
Date)), of its Chief Executive Officer, and its Chief Financial Officer stating that (i)
such officers have carefully examined the Registration Statement, the Pricing Disclosure
Package, any Issuer Free Writing Prospectus and the Prospectus and, in their opinion, the
Registration Statement and each amendment thereto, as of the Applicable Time and as of the
Closing Date (or any Option Closing Date if such date is other than the Closing Date) did
not include any untrue statement of a material fact and did not omit to state a material
fact required to be stated therein or necessary to make the statements therein not misleading,
and the Pricing Disclosure Package, as of the Applicable Time and as of the Closing Date
(or any Option Closing Date if such date is other than the Closing Date), any Issuer Free
Writing Prospectus as of its date and as of the Closing Date (or any Option Closing Date
if such date is other than the Closing Date), the Prospectus and each amendment or supplement
thereto, as of the respective date thereof and as of the Closing Date (or any Option Closing
Date if such date is other than the Closing Date), did not include any untrue statement of
a material fact and did not omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances in which they were made, not misleading,
(ii) since the Applicable Time, no event has occurred which should have been set forth in
a supplement or amendment to the Registration Statement, the Pricing Disclosure Package or
the Prospectus, (iii) to their knowledge after reasonable investigation, as of the Closing
Date (or any Option Closing Date if such date is other than the Closing Date), the representations
and warranties of the Company in this Agreement are true and correct in all material respects
and the Company has complied with all agreements and satisfied all conditions on its part
to be performed or satisfied hereunder at or prior to the Closing Date (or any Option Closing
Date if such date is other than the Closing Date), and (iv) there has not been, subsequent
to the date of the most recent audited financial statements included in the Pricing Disclosure
Package, any Material Adverse Effect in the financial position or results of operations of
the Company, or any change or development that, singularly or in the aggregate, would involve
a Material Adverse Effect, in or affecting the condition (financial or otherwise), results
of operations, business, assets or prospects of the Company, except as set forth in the Prospectus. |
| 4.4.2 | Secretary’s
Certificate. At the Closing Date, and the Option Closing Date, if any, the Underwriters
shall have received a certificate of the Company signed by the Secretary of the Company,
dated the Closing Date or the Option Date, as the case may be, respectively, certifying:
(i) that each of the Company’s certificate or articles of incorporation, bylaws or
other organizational or charter documents is true and complete, has not been modified and
is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors
relating to the Offering are in full force and effect and have not been modified; (iii) as
to the accuracy and completeness of all correspondence between the Company or its counsel
and the Commission; and (iv) as to the incumbency of the officers of the Company. The documents
referred to in such certificate shall be attached to such certificate. |
| 4.5 | No
Material Changes. Prior to and on the Closing Date and each Option Closing Date,
if any: (i) there shall have been no Material Adverse Effect or development involving a prospective
Material Adverse Effect in the condition or prospects or the business activities, financial
or otherwise, of the Company from the latest dates as of which such condition is set forth
in the Registration Statement, the Pricing Disclosure Package and the Prospectus; (ii) no
action, suit or proceeding, at law or in equity, shall have been pending or threatened against
the Company or any director or officer before or by any court or federal, state, local or
foreign commission, board or other administrative agency wherein an unfavorable decision,
ruling or finding may materially adversely affect the business, operations, prospects or
financial condition or income of the Company; (iii) no stop order shall have been issued
under the Securities Act and no proceedings therefor shall have been initiated or threatened
by the Commission; and (iv) the Registration Statement, the Pricing Disclosure Package and
the Prospectus and any amendments or supplements thereto shall contain all material statements
which are required to be stated therein in accordance with the Securities Act and the Securities
Act Regulations and shall conform in all material respects to the requirements of the Securities
Act and the Securities Act Regulations, and neither the Registration Statement, the Pricing
Disclosure Package nor the Prospectus nor any amendment or supplement thereto shall contain
any untrue statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. |
| 4.6 | No
Material Misstatement or Omission. The Underwriters shall not have discovered and
disclosed to the Company on or prior to the Closing Date and each Option Closing Date, if
any, that the Registration Statement or any amendment or supplement thereto contains an untrue
statement of a fact which, in the opinion of counsel for the Underwriters, is material or
omits to state any fact which, in the opinion of such counsel, is material and is required
to be stated therein or is necessary to make the statements therein not misleading, or that
the Registration Statement, the Pricing Disclosure Package or the Prospectus or any amendment
or supplement thereto contains an untrue statement of fact which, in the opinion of such
counsel, is material or omits to state any fact which, in the opinion of such counsel, is
material and is necessary in order to make the statements, in the light of the circumstances
under which they were made, not misleading. |
| 4.7 | Delivery
of Agreements |
| 4.7.1 | Lock-Up
Agreements. On or before the date of this Agreement, the Company shall have delivered
to the Representatives executed copies of the Lock-Up Agreements from each of the
persons listed in Schedule 3 hereto. |
| 4.7.2 | Representative’s
Warrant Agreement. On the Closing Date and on each Option Closing Date, the Company
shall have delivered to A.G.P. (or its designees) executed copies of the Representative’s
Warrant Agreement. |
| 4.8 | Additional
Documents. At the Closing Date and at each Option Closing Date (if any) Representatives
Counsel shall have been furnished with such documents and opinions as they may reasonably
require for the purpose of enabling Representatives Counsel to deliver an opinion
to the Underwriters, or in order to evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the Shares as herein contemplated
shall be satisfactory in form and substance to the Representatives and Representatives
Counsel. |
| 5.1 | Indemnification
of the Underwriters |
| 5.1.1 | General.
Subject to the conditions set forth below, and to the extent permitted by law, the Company
agrees to indemnify and hold harmless each Underwriter, its affiliates and each of their
respective directors, officers, and employees, and each person, if any, who controls any
such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act (collectively the “Underwriter Indemnified Parties,”
and each an “Underwriter Indemnified Party”), against any and all loss,
liability, claim, damage and expense whatsoever (including but not limited to any and all
legal or other expenses reasonably incurred in investigating, preparing or defending against
any litigation, commenced or threatened, or any claim whatsoever, whether arising out of
any action between any of the Underwriter Indemnified Parties and the Company or between
any of the Underwriter Indemnified Parties and any third party, or otherwise) to which they
or any of them may become subject under the Securities Act, the Exchange Act or any other
statute or at common law or otherwise or under the laws of Marshall Islands, arising out
of or based upon any untrue statement or alleged untrue statement of a material fact contained
in (i) the Registration Statement, the Pricing Disclosure Package, the Preliminary Prospectus,
or the Prospectus (as from time to time each may be amended and supplemented); (ii) any materials
or information provided to investors by, or with the approval of, the Company in connection
with the marketing of the Offering, including any “road show” or investor presentations
made to investors by the Company (whether in person or electronically); or (iii) any application
or other document or written communication (in this Section 5, collectively called “application”)
executed by the Company or based upon written information furnished by the Company in any
jurisdiction in order to qualify the Shares under the securities laws thereof or filed with
the Commission, any state securities commission or agency, the Exchange or any other national
securities exchange; or the omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, unless such statement or omission was made in
reliance upon, and in conformity with, the Underwriters’ Information. With respect
to any untrue statement or omission or alleged untrue statement or omission made in the Pricing
Disclosure Package, the indemnity agreement contained in this Section 5.1.1 shall not inure
to the benefit of any Underwriter Indemnified Party to the extent that any loss, liability,
claim, damage or expense of such Underwriter Indemnified Party results from the fact that
a copy of the Prospectus was not given or sent to the person asserting any such loss, liability,
claim or damage at or prior to the written confirmation of sale of the Shares to such person
as required by the Securities Act and the Securities Act Regulations, and if the untrue statement
or omission has been corrected in the Prospectus, unless such failure to deliver the Prospectus
was a result of non-compliance by the Company with its obligations under Section 3.3 hereof. |
| 5.1.2 | Procedure.
If any action is brought against an Underwriter Indemnified Party in respect of which indemnity
may be sought against the Company pursuant to Section 5.1.1, such Underwriter Indemnified
Party shall promptly notify the Company in writing of the institution of such action and
the Company shall assume the defense of such action, including the employment and fees of
counsel (subject to the reasonable approval of such Underwriter Indemnified Party) and payment
of actual expenses. Such Underwriter Indemnified Party shall have the right to employ its
or their own counsel in any such case, but the fees and expenses of such counsel shall be
at the expense of such Underwriter Indemnified Party unless (i) the employment of such counsel
at the expense of the Company shall have been authorized in writing by the Company in connection
with the defense of such action, or (ii) the Company shall not have employed counsel to have
charge of the defense of such 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 the Company (in which case the Company 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 the reasonable fees and expenses of not more than one additional
firm of attorneys selected by the Underwriter Indemnified Party (in addition to local counsel)
shall be borne by the Company. Notwithstanding anything to the contrary contained herein,
if any Underwriter Indemnified Party shall assume the defense of such action as provided
above, the Company shall have the right to approve the terms of any settlement of such action,
which approval shall not be unreasonably withheld. |
| 5.2 | Indemnification
of the Company. Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless the Company, its directors, its officers who signed the Registration Statement
and persons who control the Company within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and
expense described in the foregoing indemnity from the Company to the several Underwriters,
as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements
or omissions made in the Registration Statement, any Preliminary Prospectus, the Pricing
Disclosure Package or Prospectus or any amendment or supplement thereto or in any application,
in reliance upon, and in strict conformity with, the Underwriters’ Information. In
case any action shall be brought against the Company or any other person so indemnified based
on any Preliminary Prospectus, the Registration Statement, the Pricing Disclosure Package
or Prospectus or any amendment or supplement thereto or any application, and in respect of
which indemnity may be sought against any Underwriter, such Underwriter shall have the rights
and duties given to the Company, and the Company and each other person so indemnified shall
have the rights and duties given to the several Underwriters by the provisions of Section
5.1.2. The Company agrees promptly to notify the Representatives of the commencement
of any litigation or proceedings against the Company or any of its officers, directors or
any person, if any, who controls the Company within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, in connection with the issuance and sale of the Shares
or in connection with the Registration Statement, the Pricing Disclosure Package, or the
Prospectus or any Issuer Free Writing Prospectus. |
| 5.3.1 | Contribution
Rights. If the indemnification provided for in this Section 5 shall for any reason
be unavailable to or insufficient to hold harmless an indemnified party under Section 5.1
or 5.2 in respect of any loss, claim, damage or liability, or any action in respect thereof,
referred to therein, then each indemnifying party shall, in lieu of indemnifying such indemnified
party, contribute to the amount paid or payable by such indemnified party as a result of
such loss, claim, damage or liability, or action in respect thereof, (i) in such proportion
as shall be appropriate to reflect the relative benefits received by the Company, on the
one hand, and the Underwriters, on the other, from the Offering of the Shares, or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in clause (i) above
but also the relative fault of the Company, on the one hand, and the Underwriters, on the
other, with respect to the statements or omissions that resulted in such loss, claim, damage
or liability, or action in respect thereof, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the Underwriters, on
the other, with respect to such Offering shall be deemed to be in the same proportion as
the total net proceeds from the Offering of the Shares purchased under this Agreement (before
deducting expenses) received by the Company, as set forth in the table on the cover page
of the Prospectus, on the one hand, and the total underwriting discounts and commissions
received by the Underwriters with respect to the shares of Common Stock purchased under this
Agreement, as set forth in the table on the cover page of the Prospectus, on the other hand.
The relative fault shall be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or the Underwriters, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 5.3.1 were to be determined by pro rata
allocation (even if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation that does not take into account the equitable considerations referred
to herein. The amount paid or payable by an indemnified party as a result of the loss, claim,
damage or liability, or action in respect thereof, referred to above in this Section 5.3.1
shall be deemed to include, for purposes of this Section 5.3.1, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this Section 5.3.1 in no event
shall an Underwriter be required to contribute any amount in excess of the amount by which
the total underwriting discounts and commissions received by such Underwriter with respect
to the Offering of the Shares exceeds the amount of any damages that such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. |
| 5.3.2 | Contribution
Procedure. Within fifteen (15) days after receipt by any party to this Agreement
(or its representative) of notice of the commencement of any action, suit or proceeding,
such party will, if a claim for contribution in respect thereof is to be made against another
party (“contributing party”), notify the contributing party of the commencement
thereof, but the failure to so notify the contributing party will not relieve it from any
liability which it may have to any other party other than for contribution hereunder. In
case any such action, suit or proceeding is brought against any party, and such party notifies
a contributing party or its representative of the commencement thereof within the aforesaid
15 days, the contributing party will be entitled to participate therein with the notifying
party and any other contributing party similarly notified. Any such contributing party shall
not be liable to any party seeking contribution on account of any settlement of any claim,
action or proceeding affected by such party seeking contribution without the written consent
of such contributing party. The contribution provisions contained in this Section 5.3.2 are
intended to supersede, to the extent permitted by law, any right to contribution under the
Securities Act, the Exchange Act or otherwise available. Each Underwriter’s obligations
to contribute pursuant to this Section 5.3 are several and not joint. |
| 6 | Default
by an Underwriter |
| 6.1 | Default
Not Exceeding 10% of Firm Shares or Option Shares. If any Underwriter or Underwriters
shall default in its or their obligations to purchase the Firm Shares or the Option Shares,
and if the number of the Firm Shares or the Option Shares with respect to which such default
relates does not exceed in the aggregate 10% of the number of Firm Shares or the Option Shares
that all Underwriters have agreed to purchase hereunder, then such Firm Shares or the Option
Shares to which the default relates shall be purchased by the non-defaulting Underwriters
in proportion to their respective commitments hereunder. |
| 6.2 | Default
Exceeding 10% of Firm Shares or the Option Shares. In the event that the default
addressed in Section 6.1 relates to more than 10% of the Firm Shares or the Option Shares,
you may in your discretion arrange for yourself or for another party or parties to purchase
such Firm Shares or the Option Shares to which such default relates on the terms contained
herein. If, within one (1) Business Day after such default relating to more than 10% of the
Firm Shares or the Option Shares, you do not arrange for the purchase of such Firm Shares
or the Option Shares, then the Company shall be entitled to a further period of one (1) Business
Day within which to procure another party or parties satisfactory to you to purchase said
Firm Shares or the Option Shares on such terms. In the event that neither you nor the Company
arrange for the purchase of the Firm Shares or the Option Shares to which a default relates
as provided in this Section 6, this Agreement will automatically be terminated by you or
the Company without liability on the part of the Company (except as provided in Sections
3.11 and 5 hereof) or the several Underwriters (except as provided in Section 5 hereof);
provided, however, that if such default occurs with respect to the Option Shares, this Agreement
will not terminate as to the Firm Shares; and provided, further, that nothing herein shall
relieve a defaulting Underwriter of its liability, if any, to the other Underwriters and
to the Company for damages occasioned by its default hereunder. |
| 6.3 | Postponement
of Closing Date. In the event that the Firm Shares or Option Shares to which the
default relates are to be purchased by the non-defaulting Underwriters, or are to be purchased
by another party or parties as aforesaid, you or the Company shall have the right to postpone
the Closing Date or Option Closing Date for a reasonable period, but not in any event exceeding
five (5) Business Days, in order to effect whatever changes may thereby be made necessary
in the Registration Statement, the Pricing Disclosure Package or the Prospectus or in any
other documents and arrangements, and the Company agrees to file promptly any amendment to
the Registration Statement, the Pricing Disclosure Package or the Prospectus that in the
opinion of counsel for the Underwriters may thereby be made necessary. The term “Underwriter”
as used in this Agreement shall include any party substituted under this Section 6 with like
effect as if it had originally been a party to this Agreement with respect to such shares
of Common Stock. |
| 7 | Effective
Date of this Agreement and Termination Thereof. |
| 7.1 | Effective
Date. This Agreement shall become effective when both the Company and the Representatives
have executed the same and delivered counterparts of such signatures to the other party. |
| 7.2 | Termination.
The Underwriters shall have the right to terminate this Agreement at any time prior to any
Closing Date, (i) if any domestic or international event or act or occurrence has materially
disrupted, or in the Representative’s reasonable opinion will in the immediate future
materially disrupt, general securities markets in the United States; or (ii) if trading on
the New York Stock Exchange, the NYSE American LLC, the NASDAQ Capital Market, the NASDAQ
Global Market, the NASDAQ Global Select Market shall have been suspended or materially limited,
or minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices
for securities shall have been required by FINRA or by order of the Commission or any other
government authority having jurisdiction; or (iii) if the United States shall have become
involved in a new war or an increase in major hostilities; or (iv) if a banking moratorium
has been declared by a New York State or federal authority; or (v) if a moratorium on foreign
exchange trading has been declared which materially adversely impacts the United States securities
markets; or (vi) if the Company shall have sustained a material loss by fire, flood, accident,
hurricane, earthquake, theft, sabotage or other calamity or malicious act which, whether
or not such loss shall have been insured, will, in the Representative’s opinion, make
it inadvisable to proceed with the delivery of the Firm Shares or Option Shares; (vii) if
the Company is in material breach of any of its representations, warranties or covenants
hereunder; or (viii) either Representatives shall have become aware after the date
hereof of such a Material Adverse Effect in the conditions or prospects of the Company, or
such adverse material change in general market conditions as in the Representative’s
judgment would make it impracticable to proceed with the offering, sale and/or delivery of
the Shares or to enforce contracts made by the Underwriters for the sale of the Shares. |
| 7.3 | Expenses.
Notwithstanding anything to the contrary in this Agreement, except in the case of a default
by the Underwriters, pursuant to Section 6.2 above, in the event that this Agreement is terminated
prior to the Closing Date for any reason whatsoever, within the time specified herein or
any extensions thereof pursuant to the terms herein, the Company shall be obligated to pay
to the Underwriters their actual and accountable out-of-pocket documented expenses related
to the transactions contemplated herein then due and payable (including the out-of-pocket
and documented fees and disbursements of Representatives Counsel) in the amounts set
forth in Section 3 of the engagement letter, dated August 24, 2024, by and between the Company
and the Representative, and upon demand the Company shall pay the full amount thereof up
to the cap to the A.G.P./Alliance Global Partners on behalf of the Underwriters; provided,
however, that such expense cap in no way limits or impairs the indemnification and contribution
provisions of this Agreement. |
| 7.4 | Survival
of Indemnification. Notwithstanding any contrary provision contained in this Agreement,
any election hereunder or any termination of this Agreement, and whether or not this Agreement
is otherwise carried out, the provisions of Section 5 shall remain in full force and effect
and shall not be in any way affected by, such election or termination or failure to carry
out the terms of this Agreement or any part hereof. |
| 7.5 | Representations,
Warranties, Agreements to Survive. All representations, warranties and agreements
contained in this Agreement or in certificates of officers of the Company submitted pursuant
hereto, shall remain operative and in full force and effect regardless of (i) any investigation
made by or on behalf of any Underwriter or its Affiliates or selling agents, any person controlling
any Underwriter, its officers or directors or any person controlling the Company or (ii)
delivery of and payment for the Shares. |
| 8.1 | Notices.
All communications hereunder, except as herein otherwise specifically provided, shall be
in writing and shall be mailed (registered or certified mail, return receipt requested),
personally delivered or sent by electronic mail (email) and confirmed and shall be deemed
given when so delivered or sent via email and confirmed or if mailed, two (2) days after
such mailing. |
If to the Representatives:
A.G.P./Alliance Global Partners
590 Madison Avenue, 28th Floor
New York, New York 10022
Attention: Thomas Higgins
Email: thiggins@allianceg.com
and to:
Banco Bradesco BBI S.A.
Avenida Juscelino Kubitschek,
1,309, 10th Floor
04543-011, São Paulo, Brazil
Attention: Guilherme Zamai
Email:
guilherme.zamai@bradescobbi.com.br
with
a copy (which shall not constitute notice) to:
Blank
Rome LLP
1271
Avenue of the America
New
York, New York 1002
Attention:
Leslie Marlow, Esq. or Patrick J. Egan, Esq.
Email:
leslie.marlow@blankrome.com; patrick.egan@blankrome.com
If
to the Company:
Atlas
Critical Minerals Corporation
Rua
Antônio de Albuquerque, 156, Suite 1720
Belo
Horizonte, Minas Gerais, Brazil, 30112-010
Attention:
Marc Fogassa, Chairman and Chief Executive Officer
Email:
mf@atlas-lithium.com
with
a copy (which shall not constitute notice) to:
Disclosure
Law Group
600
West Broadway, Suite 700
San
Diego, CA 92101
Attention:
Daniel Rumsey, Esq
Email:
drumsey@disclosurelawgroup.com
| 8.2 | Headings.
The headings contained herein are for the sole purpose of convenience of reference, and shall
not in any way limit or affect the meaning or interpretation of any of the terms or provisions
of this Agreement. |
| 8.3 | Amendment.
This Agreement may only be amended by a written instrument executed by each of the parties
hereto. |
| 8.4 | Entire
Agreement. This Agreement (together with the other agreements and documents being
delivered pursuant to or in connection with this Agreement) constitutes the entire agreement
of the parties hereto with respect to the subject matter hereof and thereof, and supersedes
all prior agreements and understandings of the parties, oral and written, with respect to
the subject matter hereof. |
| 8.5 | Binding
Effect. This Agreement shall inure solely to the benefit of and shall be binding
upon the Representative, the Underwriters, the Company and the controlling persons, directors
and officers referred to in Section 5 hereof, and their respective successors, legal representatives,
heirs and assigns, and no other person shall have or be construed to have any legal or equitable
right, remedy or claim under or in respect of or by virtue of this Agreement or any provisions
herein contained. The term “successors and assigns” shall not include a purchaser,
in its capacity as such, of securities from any of the Underwriters. |
| 8.6 | Governing
Law; Consent to Jurisdiction; Trial by Jury; Service of Process. This Agreement shall
be governed by and construed and enforced in accordance with the laws of the State of New
York, without giving effect to conflict of laws principles thereof. The Company hereby agrees
that any action, proceeding or claim against it arising out of, or relating in any way to
this Agreement shall be brought and enforced in the New York Supreme Court, County of New
York, or in the United States District Court for the Southern District of New York, and irrevocably
submits to such jurisdiction, which jurisdiction shall be exclusive. The Company hereby waives
any objection to such exclusive jurisdiction and that such courts represent an inconvenient
forum. Any such process or summons to be served upon the Company may be served by transmitting
a copy thereof by registered or certified mail, return receipt requested, postage prepaid,
addressed to it at the address set forth in Section 8.1 hereof. Such mailing shall be deemed
personal service and shall be legal and binding upon the Company in any action, proceeding
or claim. The Company agrees that the prevailing party(ies) in any such action shall be entitled
to recover from the other party(ies) all of its reasonable attorneys’ fees and expenses
relating to such action or proceeding and/or incurred in connection with the preparation
therefor. The Company (on its behalf and, to the extent permitted by applicable law, on behalf
of its shareholders and affiliates) and each of the Underwriters hereby irrevocably waives,
to the fullest extent permitted by applicable law, any and all right to trial by jury in
any legal proceeding arising out of or relating to this Agreement or the transactions contemplated
hereby. |
(ii)
The Company hereby irrevocably designates and appoints the Trust Company of the Marshall Islands, Inc., with an office located at 60 East 42nd Street, Suite 1020, New York, New York 10165 (the “Process Agent”),
as its authorized agent upon whom process may be served in any claim brought against the Company, it being understood that the designation
and appointment of the Process Agent as such authorized agent shall become effective immediately without any further action on the part
of the Company. The Company represents to each Underwriter that it has notified the Process Agent of such designation and appointment
and that the Process Agent has accepted the same. The Company hereby irrevocably authorizes and directs the Process Agent to accept such
service. The Company further agrees that service of process upon the Process Agent and written notice of said service to the Company,
mailed by first-class mail and delivered to the Process Agent, shall be deemed in every respect effective service of process upon the
Company in any such claim. Nothing herein shall affect the right of each Underwriter, its partners, directors, officers and members,
any person who controls any Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, or
any “affiliate” (within the meaning of Rule 405 under the Securities Act) of such Underwriter, or the successors and assigns
of all of the foregoing persons, to serve process in any other manner permitted by law. The provisions of this Section 8.6 shall survive
any termination of this Agreement, in whole or in part.
| 8.7 | Judgment
Currency. (i) If for the purpose of obtaining or enforcing judgment against the Company
in any court in any jurisdiction it becomes necessary to convert into any other currency
(such other currency being hereinafter in this Section 8.7 referred to as the “Judgment
Currency”) an amount due in U.S. Dollars under this Agreement, the conversion shall
be made at the Exchange Rate prevailing on the Trading Day immediately preceding: (A) the
date actual payment of the amount due, in the case of any proceeding in the courts of New
York or in the courts of any other jurisdiction that will give effect to such conversion
being made on such date or (B) the date on which the foreign court determines, in the case
of any proceeding in the courts of any other jurisdiction (the date as of which such conversion
is made pursuant to this Section 8.7 being hereinafter referred to as the “Judgment
Conversion Date”). |
| 8.8 | Execution
in Counterparts. This Agreement may be executed in one or more counterparts, and
by the different parties hereto in separate counterparts, each of which shall be deemed to
be an original, but all of which taken together shall constitute one and the same agreement,
and shall become effective when one or more counterparts has been signed by each of the parties
hereto and delivered to each of the other parties hereto. Delivery of a signed counterpart
of this Agreement by facsimile or email/pdf transmission shall constitute valid and sufficient
delivery thereof. |
| 8.9 | Research
Analyst Independence. The Company acknowledges that each Underwriter’s research
analysts and research departments are required to be independent from its investment banking
division and are subject to certain regulations and internal policies, and that such Underwriter’s
research analysts may hold views and make statements or investment recommendations and/or
publish research reports with respect to the Company and/or the Offering that differ from
the views of their investment banking division. The Company acknowledges that each Underwriter
is a full service securities firm and as such from time to time, subject to applicable securities
laws, rules and regulations, may effect transactions for its own account or the account of
its customers and hold long or short positions in debt or equity securities of the Company;
provided, however, that nothing in this Section 8.9 shall relieve the Underwriter of any
responsibility or liability it may otherwise bear in connection with activities in violation
of applicable securities laws, rules or regulations. |
| 8.10 | Waiver,
etc. The failure of any of the parties hereto to at any time to enforce any of the
provisions of this Agreement shall not be deemed or construed to be a waiver of any such
provision, nor to in any way effect the validity of this Agreement or any provision hereof
or the right of any of the parties hereto to thereafter enforce each and every provision
of this Agreement. No waiver of any breach, non-compliance or non-fulfillment of any of the
provisions of this Agreement shall be effective unless set forth in a written instrument
executed by the party or parties against whom or which enforcement of such waiver is sought;
and no waiver of any such breach, non-compliance or non-fulfillment shall be construed or
deemed to be a waiver of any other or subsequent breach, non-compliance or non-fulfillment. |
[Signature
page follows]
If
the foregoing correctly sets forth the understanding between the Underwriters and the Company, please so indicate in the space provided
below for that purpose, whereupon this letter shall constitute a binding agreement between us.
| |
|
Very
truly yours, |
| |
|
|
| |
|
Atlas
Critical Minerals Corporation |
| |
|
|
|
| |
|
By:
|
/s/
Marc Fogassa |
| |
|
Name:
|
Marc
Fogassa |
| |
|
Title:
|
Chief
Executive Officer |
| Confirmed
as of the date first written above mentioned, on behalf of itself and as Representatives of the several Underwriters named on Schedule
1 hereto: |
|
| A.G.P./ALLIANCE
GLOBAL PARTNERS |
|
| |
|
|
| By:
|
/s/
Thomas J. Higgins |
|
| Name:
|
Thomas
J. Higgins |
|
| Title: |
Managing
Director |
|
| BANCO BRADESCO BBI S.A. |
|
| |
|
|
| By: |
/s/ Pedro Henrique Ney Oliveira |
|
| Name: |
Pedro Henrique Ney Oliveira |
|
| Title: |
Director |
|
| |
|
|
| By: |
/s/ Sebastião Carlos de Camargo Junior |
|
| Name: |
Sebastião Carlos de Camargo Junior |
|
| Title: |
Vice President |
|
[Signature
Page to
Atlas Critical Minerals Corporation Underwriting Agreement]
SCHEDULE
1
| Underwriter | |
Total Number
of Firm
Shares to be
Purchased | | |
Number of Option Shares to be Purchased if the Over-Allotment Option is Fully Exercised by the Representative | |
| A.G.P./Alliance Global Partners | |
| 840,000 | | |
| 126,000 | |
| Banco Bradesco BBI S.A. | |
| 360,000 | | |
| 54,000 | |
| | |
| | | |
| | |
| Total | |
| 1,200,000 | | |
| 180,000 | |
SCHEDULE
2-A
Pricing
Information
Number
of Firm Shares: 1,200,000
Number
of Option Shares: 180,000
Public
Offering Price per Firm Share: $8.00
Underwriting
Discount per Firm Share sold to investors1: $0.56
Proceeds
to Company per Firm Share (before expenses)2: $7.44
1
The Underwriting discount per Firm Share for Company Introduced Investors is: $0.24.
2
Proceeds to the Company per Firm Share (before expenses) for Company Introduced Investors is: $7.76.
SCHEDULE
2-B
Issuer
General Use Free Writing Prospectus
None.
SCHEDULE
3
List
of Lock-Up Parties
| Lock-Up
Parties |
|
Term
of Lock Up |
| Marc
Fogassa |
|
180
days |
| Rodrigo
Nazareth Menck |
|
180
days |
| Joel
de Paiva Monteiro, Esq. |
|
180
days |
| Areli
Nogueira da Silva Júnior |
|
180
days |
| Brian
W. Bernier |
|
180
days |
| Agenor
Narcizo Drumond de Cuculicchio, Esq. |
|
180
days |
| Gabriel
Santos Cordeiro de Andrade, Esq. |
|
180
days |
| Atlas
Lithium Corporation |
|
180
days |
EXHIBIT
A
Representative’s
Warrant Agreement
Form
of Representative’s Warrant Agreement
THE
REGISTERED HOLDER OF THIS PURCHASE WARRANT BY ITS ACCEPTANCE HEREOF, AGREES THAT IT WILL NOT SELL, TRANSFER OR ASSIGN THIS PURCHASE WARRANT
EXCEPT AS HEREIN PROVIDED AND THE REGISTERED HOLDER OF THIS PURCHASE WARRANT AGREES THAT IT WILL NOT SELL, TRANSFER, ASSIGN, PLEDGE OR
HYPOTHECATE THIS PURCHASE WARRANT FOR A PERIOD OF ONE HUNDRED EIGHTY DAYS FOLLOWING THE COMMENCEMENT DATE (DEFINED BELOW) TO ANYONE OTHER
THAN (I) A.G.P./ALLIANCE GLOBAL PARTNERS, OR AN UNDERWRITER OR A SELECTED DEALER IN CONNECTION WITH THE OFFERING, OR (II) A BONA FIDE
OFFICER OR PARTNER OF A.G.P./ALLIANCE GLOBAL PARTNERS OR OF ANY SUCH UNDERWRITER OR SELECTED DEALER.
THIS
PURCHASE WARRANT IS NOT EXERCISABLE PRIOR TO JULY 7, 2026 THE [DATE THAT IS 180 DAYS FROM THE COMMENCEMENT DATE OF THE OFFERING]. VOID
AFTER 5:00 P.M., EASTERN TIME, ON JULY 7, 2031 [THE DATE THAT IS FIVE YEARS FROM THE COMMENCEMENT DATE OF THE OFFERING].
COMMON
STOCK PURCHASE WARRANT
ATLAS CRITICAL MINERALS CORPORATION
| Warrant Shares: _________1 | |
Original Issue Date: January 12, 2026 |
Initial
Exercise Date: July 7, 2026
THIS
COMMON STOCK PURCHASE WARRANT (the “Warrant”) certifies that, for value received, _______or its assigns (the
“Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter
set forth, at any time and from time to time from and after the 180th day from the date of effectiveness (the “Commencement
Date”) of that certain registration statement on Form F-1, as amended (File No. 333-290242) (the “Registration
Statement”), filed by the Company (the “Initial Exercise Date”), in accordance with FINRA Rule
5110(e)(1), and through and including the five (5) year anniversary of the Commencement Date, which such date is January 8, 2031
(the “Termination Date”), but not thereafter, to subscribe for and purchase from Atlas Critical Minerals
Corporation, a Republic of the Marshall Islands corporation (the “Company”), up to __________ shares of the
Company’s common stock, par value $0.001 per share (the “Common Stock,” and such shares of Common Stock
underlying this Warrant, subject to adjustment hereunder, the “Warrant Shares”) of the Company. The purchase
price of one share of Common Stock under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b).
Section
1. Definitions. Capitalized terms used and not otherwise defined herein shall have the meanings set forth in that certain
Underwriting Agreement, dated January 8, 2026 (as may be amended from time to time, the “Underwriting
Agreement”), by and between the Company and A.G.P./Alliance Global Partners (the
“Representative”), as representative of the several underwriters named therein.
1
A number of Warrant Shares equal to 6.0% of the Company’s shares of Common Stock sold in the Offering.
Section
2. Exercise
a) Exercise
of Warrant. Subject to the terms and conditions hereof, exercise of the purchase rights represented by this Warrant may be made,
in whole or in part, at any time or times on or after the Initial Exercise Date and on or before the Termination Date by delivery to
the Company of a duly executed facsimile copy or PDF copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise in the
form attached hereto as Exhibit A (the “Notice of Exercise”). Within the earlier of (i) one (1) Trading Day
and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined in Section 2(d)(i) herein) following the date
of exercise as aforesaid, the Holder shall deliver the aggregate Exercise Price for the Warrant Shares specified in the applicable Notice
of Exercise by wire transfer or cashier’s check drawn on a United States bank unless the cashless exercise procedure specified
in Section 2(c) below is applicable and specified in the attached Notice of Exercise. The Company shall have no obligation to inquire
with respect to or otherwise confirm the authenticity of the signature(s) contained on any Notice of Exercise nor the authority of the
person executing such Notice of Exercise. No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or
other type of guarantee or notarization) of any Notice of Exercise be required. Notwithstanding anything herein to the contrary, the
Holder shall not be required to physically surrender this Warrant to the Company until the Holder has purchased all of the Warrant Shares
available hereunder and the Warrant has been exercised in full, in which case, the Holder shall surrender this Warrant to the Company
for cancellation within three (3) Trading Days of the date on which the final Notice of Exercise is delivered to the Company. Partial
exercises of this Warrant resulting in purchases of a portion of the total number of Warrant Shares available hereunder shall have the
effect of lowering the outstanding number of Warrant Shares purchasable hereunder in an amount equal to the applicable number of Warrant
Shares purchased. The Holder and the Company shall maintain records showing the number of Warrant Shares purchased and the date of such
purchases. The Company shall deliver any objection to any Notice of Exercise within one (1) Trading Day of receipt of such notice. The
Holder and any assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following
the purchase of a portion of the Warrant Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given
time may be less than the amount stated on the face hereof.
b)
Exercise Price. The exercise price per Warrant Share under this Warrant shall be $9.202, subject to adjustment
hereunder (the “Exercise Price”).
c) Cashless
Exercise. If at the time of exercise hereof there is no effective registration statement registering, or the prospectus contained
therein is not available for, the issuance of the Warrant Shares to the Holder, then this Warrant may also be exercised, in whole or
in part, at such time by means of a “cashless exercise” in which the Holder shall be entitled to receive a number of Warrant
Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
| (A)
= |
as
applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of
Exercise is (1) both executed and delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed
and delivered pursuant to Section 2(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as
defined in Rule 600(b)(68) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) the VWAP on
the Trading Day immediately preceding the date of the applicable Notice of Exercise or (iii) the VWAP on the date of the applicable
Notice of Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and
delivered pursuant to Section 2(a) hereof after the close of “regular trading hours” on such Trading Day; |
2
Insert price equal to 115% of the underwritten offering price per share of the Company’s common stock.
| (B)
= |
the
Exercise Price of this Warrant, as adjusted hereunder; and |
| (X)
= |
the
number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise
were by means of a cash exercise rather than a cashless exercise. |
“Bid
Price” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock
is then listed or quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30
a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if the Common Stock is not then listed or quoted on a Trading Market
and if prices for the Common Stock are then reported on the OTCQB Venture Market (“OTCQB”) or the OTCQX Best Market
(“OTCQX”), as applicable, the volume weighted average price of the Common Stock for such date (or the nearest preceding
date) on OTCQB or OTCQX, as applicable, (c) if the Common Stock is not then listed or quoted for trading on a Trading Market or on OTCQB
or OTCQX and if prices for the Common Stock are then reported on the OTCID™ Basic Market (or a similar organization or agency succeeding
to its functions of reporting prices), the most recent bid price per share of Common Stock so reported, or (d) in all other cases, the
fair market value of one share of Common Stock as determined by an independent appraiser selected in good faith by the Holders of a majority
in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid
by the Company.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed
or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for the ten (10) Trading Days on the
Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30
a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if the Common Stock is not then listed or quoted on a Trading
Market and if prices for the Common Stock are then reported on OTCQB or OTCQX, as applicable, the volume weighted average price of
the Common Stock for the ten (10) Trading Days on OTCQB or OTCQX, as applicable, (c) if the Common Stock is not then listed or
quoted for trading on a Trading Market or on OTCQB or OTCQX and if prices for the Common Stock are then reported on the (or a
similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common
Stock so reported, or (d) in all other cases, the fair market value of one share of Common Stock as determined by an independent
appraiser selected in good faith by the Holders of a majority in interest of the Securities then outstanding and reasonably
acceptable to the Company, the fees and expenses of which shall be paid by the Company.
If
Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the
Securities Act, the Warrant Shares shall take on the registered characteristics of the Warrants being exercised. The Company agrees not
to take any position contrary to this Section 2(c).
d)
Mechanics of Exercise
i. Delivery
of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the Transfer
Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository Trust
Company through its Deposit or Withdrawal at Custodian system if the Company is then a participant in such system and either (A) there
is an effective registration statement permitting the issuance of the Warrant Shares or (B) this Warrant is being exercised via cashless
exercise, and otherwise by physical delivery of a certificate, registered in the Company’s share register in the name of the Holder
or its designee, for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise to the address specified
by the Holder in the Notice of Exercise by the date that is the earlier of (i) one (1) Trading Day after delivery of the aggregate Exercise
Price to the Company and (ii) the number of days comprising the Standard Settlement Period, in each case after the delivery to the Company
of the Notice of Exercise (such date, the “Warrant Share Delivery Date”). Upon delivery of the Notice of Exercise,
the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which
this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares, provided that payment of the aggregate Exercise
Price (other than in the case of a cashless exercise) is received by the Warrant Share Delivery Date. If the Company fails for any reason
to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant Share Delivery Date, provided that payment
of the aggregate Exercise Price (other than in the instance of a cashless exercise) is received by the Company by such date, the Company
shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject to such exercise
(based on the VWAP of the Common Stock on the date of the applicable Notice of Exercise), $10 per Trading Day (increasing to $20 per
Trading Day on the tenth Trading Day after the Warrant Share Delivery Date) for each Trading Day after such Warrant Share Delivery Date
until such Warrant Shares are delivered or Holder rescinds such exercise. The Company agrees to maintain a transfer agent that is a participant
in the FAST program so long as this Warrant remains outstanding and exercisable. As used herein, “Standard Settlement Period”
means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect
to the Common Stock as in effect on the date of delivery of the Notice of Exercise.
ii. Delivery
of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder
and upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant
evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall
in all other respects be identical with this Warrant.
iii. Rescission Rights. If the Company fails to cause the
Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 2(d)(i) by the Warrant Share Delivery Date, then the
Holder will have the right to rescind such exercise by delivering written notice to the Company.
iv.
Compensation for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to
the Holder, if the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions
of Section 2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date (other than any such failure that is solely
due to any action or inaction by the Holder with respect to such exercise, or gross negligence or willful misconduct of the Transfer
Agent), and if after such date the Holder is required by its broker to purchase (in an open market transaction or otherwise) or the Holder’s
brokerage firm otherwise purchases, shares of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which
the Holder anticipated receiving upon such exercise (a “Buy-In”), then the Company shall (A) pay in cash to the Holder
the amount, if any, by which (x) the Holder’s total purchase price (including brokerage commissions, if any) for the shares of
Common Stock so purchased exceeds (y) the amount obtained by multiplying (1) the number of Warrant Shares that the Company was required
to deliver to the Holder in connection with the exercise at issue times (2) the price at which the sell order giving rise to such purchase
obligation was executed, and (B) at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant
Shares for which such exercise was not honored (in which case such exercise shall be deemed rescinded) or deliver to the Holder the number
of shares of Common Stock that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder.
For example, if the Holder purchases shares of Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to
an attempted exercise of Warrants with an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (A) of
the immediately preceding sentence the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written
notice indicating the amounts payable to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount
of such loss. Nothing herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in
equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure
to timely deliver shares of Common Stock upon exercise of the Warrant as required pursuant to the terms hereof.
v. No
Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this
Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall,
at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the
Exercise Price or round up to the next whole share
vi. Charges,
Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other
incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company,
and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided, however,
that in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when surrendered
for exercise shall be accompanied by the Assignment Form, attached hereto as Exhibit B, duly executed by the Holder and the
Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental
thereto. The Company shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise and all fees to
the Depository Trust Company (or another established clearing corporation performing similar functions) required for same-day
electronic delivery of the Warrant Shares.
vii. Closing
of Books. The Company will not close its shareholder books or records in any manner which prevents the timely exercise of this Warrant,
pursuant to the terms hereof.
e)
Holder’s Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the
right to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance
after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other
Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)),
would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the
number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number
of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude
the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant
beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or
nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject
to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its
Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial ownership
shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being
acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d)
of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent
that the limitation contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation to
other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable
shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination
of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution
Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company
shall have no obligation to verify or confirm the accuracy of such determination and shall have no liability for exercises of the Warrant
that are not in compliance with the Beneficial Ownership Limitation, except to the extent the Holder relies on a number of outstanding
shares of Common Stock that was provided by the Company. In addition, a determination as to any group status as contemplated above shall
be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, and the
Company shall have no obligation to verify or confirm the accuracy of such determination and shall have no liability for exercises of
the Warrant that are not in compliance with the Beneficial Ownership Limitation, except to the extent the Holder relies on the number
of outstanding shares of Common Stock that was provided by the Company. For purposes of this Section 2(e), in determining the number
of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the
Company’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement
by the Company or (C) a more recent written notice by the Company
or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written request of a Holder, the Company
shall within two (2) Trading Days confirm orally and in writing to the Holder the number of shares of Common Stock then outstanding.
In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of
securities of the Company, including this Warrant, by the Holder or its Affiliates or Attribution Parties since the date as of which
such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation” shall be 4.99%
of the number of shares of Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable
upon exercise of this Warrant. The Holder, upon written notice to the Company, may increase or decrease the Beneficial Ownership Limitation
provisions of this Section 2(e), provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares
of Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon exercise of this Warrant held
by the Holder and the provisions of this Section 2(e) shall continue to apply. Any increase in the Beneficial Ownership Limitation will
not be effective until the 61st day after such notice is delivered to the Company. The provisions of this paragraph shall be construed
and implemented in a manner otherwise than in strict conformity with the terms of this Section 2(e) to correct this paragraph (or any
portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make
changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph
shall apply to a successor holder of this Warrant. If the Warrant is unexercisable as a result of the Holder’s Beneficial Ownership
Limitation, no alternate consideration is owing to the Holder.
Section
3. Certain Adjustments
a) Stock
Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise
makes a distribution or distributions on shares of Common Stock or any other equity or equity equivalent securities payable in
shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon
exercise of this Warrant or pursuant to any other Transaction Documents), (ii) subdivides outstanding shares of Common Stock into a
larger number of shares, (iii) combines (including by way of reverse stock split) outstanding shares of Common Stock into a smaller
number of shares, or (iv) issues by reclassification of the Common Stock any shares of share capital of the Company, then in each
case the Exercise Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock
(excluding treasury shares, if any) outstanding immediately before such event and of which the denominator shall be the number of
shares of Common Stock outstanding immediately after such event, and the number of shares issuable upon exercise of this Warrant
shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant shall remain unchanged. Any
adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for the determination of
shareholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in
the case of a subdivision, combination or re-classification.
b) Subsequent
Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time that this Warrant is outstanding
the Company grants, issues or sells any Common Stock Equivalents or rights to purchase shares, warrants, securities or other property
pro rata to all of the record holders of any class of Common Stock (the “Purchase Rights”), then the Holder will be
entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired
if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any
limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date on which
a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record
holders of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, that
to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial
Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership
of such shares of Common Stock as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held
in abeyance for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership
Limitation).
c) Pro
Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or other distribution
of its assets (or rights to acquire its assets) to all of the holders of Common Stock, by way of return of capital or otherwise (including,
without limitation, any distribution of shares or other securities, property or options by way of a dividend, spin off, reclassification,
corporate rearrangement, scheme of arrangement or other similar transaction but excluding any cash distribution) (a “Distribution”),
at any time after the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution
to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable
upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial
Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the
date as of which the record holders of Common Stock are to be determined for the participation in such Distribution (provided,
however, that to the extent that the Holder’s right to participate in any such Distribution would result in the Holder exceeding
the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in
the beneficial ownership of any shares of Common Stock as a result of such Distribution to such extent) and the portion of such Distribution
shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder
exceeding the Beneficial Ownership Limitation).
d)
Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the
case may be. For purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date
shall be the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
e) Notice to Holder
i. Adjustment
to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly
deliver to the Holder by facsimile or email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment
to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii.
Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on
the Common Stock other than a share split, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the
Common Stock, (C) the Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or
purchase any shares of share capital of any class or of any rights, (D) the approval of any shareholders of the Company shall be required
in connection with any reclassification of the Common Stock, any consolidation or merger to which the Company is a party, any sale or
transfer of all or substantially all of the assets of the Company, or any compulsory share exchange whereby shares of Common Stock are
converted into other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation
or winding up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by facsimile or email to the
Holder at its last facsimile number or email address as it shall appear upon the Warrant Register of the Company, at least 4 calendar
days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be
taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as
of which the holders of the Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are
to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected
to become effective or close, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange
their shares of Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale,
transfer or share exchange; provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not
affect the validity of the corporate action required to be specified in such notice. To the extent that any notice provided in this Warrant
constitutes, or contains, material, non-public information regarding the Company or any of the Company’s subsidiaries, the Company
shall file such notice with the Commission pursuant to a report of foreign private issuer on Form 6-K promptly. The Holder shall remain
entitled to exercise this Warrant during the period commencing on the date of such notice to the effective date of the event triggering
such notice except as may otherwise be expressly set forth herein.
f) Voluntary
Adjustment by Company. Subject to the rules and regulations of the Trading Market, the Company may at any time during the term of
this Warrant, subject to the prior written consent of the Holder, reduce the then current Exercise Price to any amount and for any period
of time deemed appropriate by the board of directors of the Company.
Section
4. Transfer of Warrant
a) Transferability.
Pursuant to FINRA Rule 5110(e)(1)(A), neither this Warrant nor any Warrant Shares issued upon exercise of this Warrant shall be sold,
transferred, assigned, pledged, or hypothecated, or be the subject of any hedging, short sale, derivative, put, or call transaction that
would result in the effective economic disposition of the securities for a period of 180 days beginning on the Commencement Date, or
commencement of sales of the offering pursuant to which this Warrant is being issued, except as provided in FINRA Rule 5110(e)(2)(A).
In addition, subject to compliance with any applicable securities laws, this Warrant and all rights hereunder (including, without limitation,
any registration rights) are transferable, in whole or in part, upon surrender of this Warrant at the principal office of the Company
or its designated agent, together with a written assignment of this Warrant substantially in the form attached hereto duly executed by
the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer. Upon such
surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee
or assignees, as applicable, and in the denomination or denominations specified in such instrument of assignment, and shall issue to
the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled. Notwithstanding
anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company unless the Holder
has assigned this Warrant in full, in which case, the Holder shall surrender this Warrant to the Company within three (3) Trading Days
of the date on which the Holder delivers an assignment form to the Company assigning this Warrant in full. The Warrant, if properly assigned
in accordance herewith, may be exercised by a new holder for the purchase of Warrant Shares without having a new Warrant issued.
b) New
Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of the Company,
together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the Holder or
its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division or combination,
the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in
accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the Issue Date of this Warrant and shall be
identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
c) Warrant
Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant
Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder
of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other
purposes, absent actual notice to the contrary.
Section
5. Registration of Warrant.
a)
“Piggy-Back” Registration. Unless all of the Common Stock underlying this Warrant (collectively, the
“Registrable Securities”) are included in an effective registration statement with a current prospectus, the
Holder shall have the right, commencing on the date that this Warrant becomes exercisable to include the remaining Registrable
Securities as part of any other registration of securities filed by the Company (other than in connection with a transaction
contemplated by Rule 145 promulgated under the Securities Act or pursuant to Form S-8 or any equivalent form); provided, however,
that if, solely in connection with any primary underwritten public offering for the account of the Company, the managing
underwriter(s) thereof shall, in its reasonable discretion, impose a limitation on the number of shares of Common Stock of
Registrable Securities which may be included in the registration statement because, in such underwriter(s)’ judgment,
marketing or other factors dictate such limitation is necessary to facilitate public distribution, then the Company shall be
obligated to include in such registration statement only such limited portion of the Registrable Securities with respect to which
the Holder requested inclusion hereunder as the underwriter shall reasonably permit; and further provided that no such piggy-back
rights shall exist for so long as the Registrable Securities (which term shall include those paid as consideration pursuant to the
cashless exercise provisions of this Warrant) may be sold pursuant to Rule 144 of the Securities Act without restriction. Any
exclusion of Registrable Securities shall be made pro rata among the Holders seeking to include Registrable Securities in proportion
to the number of Registrable Securities sought to be included by such Holders; provided, however, that the Company shall not exclude
any Registrable Securities unless the Company has first excluded all outstanding securities, the holders of which are not entitled
to inclusion of such securities in such Registration Statement or are not entitled to pro rata inclusion with the Registrable
Securities. In the event of such a proposed registration, the Company shall furnish the then Holders of outstanding Registrable
Securities with not less than fifteen (15) days written notice prior to the proposed date of filing of such registration statement.
Such notice to the Holders shall continue to be given for each registration statement filed by the Company until such time as all of
the Registrable Securities have been sold by the Holder. The holders of the Registrable Securities shall exercise the
“piggy-back” rights provided for herein by giving written notice, within seven (7) days of the receipt of the
Company’s notice of its intention to file a registration statement. Except as otherwise provided in this Warrant, there shall
be no limit on the number of times the Holder may request registration under this Section 5(a). The demand for any “piggy-back
registration” under this section expires on the seventh anniversary of the Commencement Date in accordance with FINRA Rule
5110(g)(8)(D). The Company covenants and agrees to give written notice of its receipt of any notice by any Holder(s) under this
section to all other registered Holders of the Warrants and/or the Registrable Securities within ten (10) days after the date of the
receipt of any such notice.
b) Demand
Registration Rights. Solely in the event there is not then a current registration statement concerning the resale of the
Registrable Securities, at any time commencing on the date that this Warrant becomes exercisable until the Termination Date, the
Holder is entitled to one “demand” registration right at the Company’s sole expense and an additional
“demand” registration right at the Holder’s expense. Upon receipt of a demand registration request from the
Holder, the Company shall prepare and file with the Commission a required registration statement (the “Required
Registration Statement”) concerning the resale of all of the Registrable Securities. The Required Registration Statement
shall be on Form F-3 if available for such a registration and if unavailable, the Company shall register the resale of the
Registrable Securities on Form F-1 or another appropriate form reasonably acceptable to the Holder and undertake to register the
resale of the Registrable Securities on Form F-3 as soon as such form is available, provided that the Company shall maintain the
effectiveness of all Registration Statements then in effect until such time as a Registration Statement on Form F-3 covering the
resale of all of the Registrable Securities has been declared effective by the Commission and the prospectus contained therein is
available for use. Within ten (10) days after receiving written notice from the Holder, the Company shall give notice to the other
Holders of the Warrants advising that the Company is proceeding with such registration statement and offering to include therein
Warrants of such other Holders. The Company shall not be obligated to any such other Holder unless such other Holder shall
accept such offer by notice in writing to the Company within five (5) days thereafter. The Company shall use its best efforts to
have such Required Registration Statement, and each other Registration Statement required to be filed pursuant to the terms of this
Warrant, declared effective by the Commission as soon as practicable. The Company shall pay the costs and expenses thereof, for one
time only, which costs and expenses shall include “Blue Sky” fees for counsel for the Representative and “Blue
Sky” filing fees to qualify the Warrants in those jurisdictions requested by the Holder. The demand for registration may be
made at any time beginning on the Initial Exercise Date and expiring on the fifth anniversary of the Commencement Date in accordance
with FINRA Rule 5110(g)(8)(C). The Company covenants and agrees to give written notice of its receipt of any notice by any Holder(s)
under this section to all other registered Holders of the Warrants and/or the Registrable Securities within ten (10) days after the
date of the receipt of any such notice.
c) Expenses
of Registration. The Company shall bear all fees and expenses attendant to registering the Registrable Securities pursuant to Section
5(b) hereof, but the Holders shall pay any and all underwriting commissions and the expenses of any legal counsel selected by the Holders
to represent them in connection with the sale of the Registrable Securities.
d) Indemnification.
The Company shall indemnify, to the fullest extent permitted by applicable laws, the Holder(s) of the Registrable Securities to be sold
pursuant to any registration statement hereunder and each person, if any, who controls such Holders within the meaning of Section 15
of the Securities Act or Section 20(a) of the Exchange Act, against all loss, claim, damage, expense or liability (including all reasonable
attorneys’ fees and other expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to
which any of them may become subject under the Securities Act, the Exchange Act or otherwise, arising from such registration statement
but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter
contained in Section 5 of the Underwriting Agreement.
e) Exercise
of Warrants. Nothing contained in this Warrant shall be construed as requiring the Holder(s) to exercise their Warrants prior to
or after the initial filing of any registration statement or the effectiveness thereof.
f) Documents
to be Delivered by Holder(s). Each of the Holder(s) participating in any of the registration statement filed by the Company shall
furnish to the Company a completed and executed questionnaire provided by the Company requesting information customarily sought of selling
security holders.
g) Damages.
Should the registration or the effectiveness thereof required by Section 5 hereof be delayed by the Company or the Company otherwise
fails to comply with such provisions, the Holder(s) shall, in addition to any other legal or other relief available to the Holder(s),
be entitled to obtain specific performance or other equitable (including injunctive) relief against the threatened breach of such provisions
or the continuation of any such breach, without the necessity of proving actual damages and without the necessity of posting bond or
other security.
Section
6. Miscellaneous
a) No
Rights as Shareholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights,
dividends or other rights as a shareholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i),
except as expressly set forth in Section 3. Without limiting the rights of a Holder to receive Warrant Shares on a “cashless
exercise” as permitted in Section 2(c), and to receive the cash payments contemplated pursuant to Section 2(d)(i) and Section
2(d)(iv), in no event will the Company be required to net cash settle an exercise of this Warrant.
b) Loss,
Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory
to it of the loss, theft, destruction or mutilation of this Warrant or any share certificate relating to the Warrant Shares, and in case
of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant, shall not include
the posting of any bond), and upon surrender and cancellation of such Warrant or share certificate, if mutilated, the Company will make
and deliver a new Warrant or share certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or share certificate.
c) Saturdays,
Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted
herein shall not be a Trading Day, then, such action may be taken or such right may be exercised on the next succeeding Trading Day.
d) Authorized
Shares. The Company covenants that, at all times during the period the Warrant is outstanding, it will reserve from its authorized
and unissued shares of Common Stock a sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise
of any purchase rights under this Warrant. The Company further covenants that its issuance of this Warrant shall constitute full authority
to its officers who are charged with the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under
this Warrant. The Company will take all such reasonable action as may be necessary to assure that such Warrant Shares may be issued as
provided herein without violation of any applicable law or regulation, or of any requirements of the Trading Market upon which the Common
Stock may be listed. The Company covenants that all Warrant Shares which may be issued upon the exercise of the purchase rights represented
by this Warrant will, upon exercise of the purchase rights represented by this Warrant and payment for such Warrant Shares in accordance
herewith, be duly authorized, validly issued, fully paid and nonassessable and free from all taxes, liens and charges created by the
Company in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue).
Except
and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation,
amending its certificate of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution,
issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms
of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such
actions as may be necessary or appropriate to protect the rights of Holder as set forth in this Warrant against impairment (it being
understood that this Warrant shall not in any case prevent the Company from effecting any such amendment, reorganization, transfer,
consolidation, merger, dissolution, issuance or sale). Without limiting the generality of the foregoing, the Company will (i) not
increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately prior to such increase
in par value, (ii) take all such action as may be necessary or appropriate in order that the Company may validly and legally issue
fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially reasonable efforts to
obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may be,
necessary to enable the Company to perform its obligations under this Warrant.
Before
taking any action, which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the
Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from
any public regulatory body or bodies having jurisdiction thereof.
e) Jurisdiction.
All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be determined in accordance
with the provisions of the Underwriting Agreement.
f) Restrictions.
The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and the Holder does not
utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
g) Nonwaiver
and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate as
a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies, notwithstanding the fact that the right
to exercise this Warrant terminates on the Termination Date. Without limiting any other provision of this Warrant, if the Company willfully
and knowingly fails to comply with any provision of this Warrant, which results in any material damages to the Holder, the Company shall
pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including, but not limited to, reasonable attorneys’
fees, including those of appellate proceedings, incurred by the Holder in collecting any amounts due pursuant hereto or in otherwise
enforcing any of its rights, powers or remedies hereunder. h) Notices. Any notice, request or other document required or permitted
to be given or delivered to the Holder by the Company shall be delivered in accordance with the notice provisions of the Underwriting
Agreement.
h) Limitation
of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase Warrant
Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase
price of any shares of Common Stock or as a shareholder of the Company, whether such liability is asserted by the Company or by creditors
of the Company.
j) Remedies.
The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific
performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert the defense in any
action for specific performance that a remedy at law would be adequate.
k) Successors
and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to
the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of
Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and
shall be enforceable by the Holder or holder of Warrant Shares.
l) Amendment.
This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company, on the one hand, and
the Holder of this Warrant, on the other hand.
m) Severability.
Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
n) Headings.
The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this
Warrant.
********************
[Signature page follows.]
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above
indicated.
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ATLAS
CRITICAL MINERALS CORPORATION |
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[SIGNATURE
PAGE TO COMMON STOCK PURCHASE WARRANT OF
ATLAS CRITICAL MINERALS CORPORATION]
EXHIBIT
A
NOTICE
OF EXERCISE
| TO: |
ATLAS
CRITICAL MINERALS CORPORATION |
(1)
The undersigned hereby elects to purchase Warrant Shares of the Company pursuant to the terms of the attached Warrant
(only if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer
taxes, if any.
(2) Payment
shall take the form of (check applicable box):
[ ] in lawful money of the United States; or
[ ]
if permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection
2(c), to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure
set forth in subsection 2(c).
(3) Please
issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
The
Warrant Shares shall be delivered to the following DWAC Account Number:
[SIGNATURE
OF HOLDER]
Name
of Investing Entity: ____________________________________________________________________________
Signature
of Authorized Signatory of Investing Entity: ______________________________________________________
Name
of Authorized Signatory: ________________________________________________________________________
Title
of Authorized Signatory: _________________________________________________________________________
Date:
____________________________________________________________________________________________
EXHIBIT
B
ASSIGNMENT
FORM
(To
assign the foregoing Warrant, execute this form and supply required information. Do not use this form to exercise the Warrant to purchase
shares.)
FOR
VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
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Signature: _________________________ |
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EXHIBIT
B
Lock-Up
Agreement
[●],
2026
A.G.P./Alliance
Global Partners
Banco
Bradesco BBI S.A.
As
Representatives of the several Underwriters
c/o
A.G.P./Alliance Global Partners
590
Madison Avenue, 28th Floor
New
York, New York 10022
Banco
Bradesco BBI S.A.
Avenida
Juscelino Kubitschek, 1,309, 10th Floor
04543-011
São Paulo, São Paulo, Brazil
Re:
Atlas Critical Minerals Corporation
Ladies
and Gentlemen:
The
undersigned understands that A.G.P./Alliance Global Partners (“A.G.P.”) and Banco Bradesco BBI S.A. (hereinafter
referred to as “you” (including its correlatives) or the “Representatives”), as the representatives
of the Underwriters (the “Underwriters”) propose to enter into an Underwriting Agreement (the “Underwriting
Agreement”) with the Company (as defined below) providing for the offer and sale (the “Offering”)
of shares (the “Shares”) of common stock, par value $0.001 per share (the “Common Stock”),
of Atlas Critical Minerals Corporation, a Republic of the Marshall Islands corporation (the “Company”).
In
consideration of the execution of the Underwriting Agreement by the Representatives, and for other good and valuable consideration, the
undersigned hereby irrevocably agrees that, without the prior written consent of A.G.P., the undersigned will not, directly or indirectly,
(a) offer for sale, sell, pledge, 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 (or enter into any transaction or device that
is designed to, or could be expected to, result in the transfer or disposition by any person at any time in the future of) any shares
of Common Stock (including, without limitation, shares of Common Stock that may be deemed to be beneficially owned by the undersigned
in accordance with the rules and regulations of the Securities and Exchange Commission and shares of Common Stock that may be issued
upon exercise of any options or warrants) or securities convertible into or exercisable or exchangeable for Common Stock; (b) enter into
any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership
of shares of Common Stock, whether any such transaction described in clause (a) or (b) above is to be settled by delivery of Common Stock
or other securities, in cash or otherwise; (c) except as provided for below, make any demand for or exercise any right or cause to be
filed a registration statement, including any amendments thereto, with respect to the registration of any shares of Common Stock or securities
convertible into or exercisable or exchangeable for Common Stock or any other securities of the Company; or (d) publicly disclose the
intention to do any of the foregoing for a period commencing on the date hereof and ending one-hundred eighty (180) days after the date
of the closing date of the Offering (such 180-day period, the “Lock-Up Period”).
The
foregoing paragraph shall not apply to (a) transactions relating to shares of Common Stock or other securities acquired in the open market
after the completion of the Offering, provided, that no filing under Section 16(a) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), shall be required or shall be voluntarily made in connection with such transactions;
(b) bona fide gifts of shares of Common Stock or any security convertible into shares of Common Stock, in each case that are made exclusively
between and among the undersigned or members of the undersigned’s family, or affiliates of the undersigned, including its partners
(if a partnership) or members (if a limited liability company); (c) any transfer of shares of Common Stock or any security convertible
into Common Stock by will or intestate succession upon the death of the undersigned; (d) transfer of shares of Common Stock or any security
convertible into Common Stock to an immediate family member (for purposes of this Lock-Up Letter Agreement, “immediate family”
shall mean any relationship by blood, marriage or adoption, not more remote than first cousin) or any trust, limited partnership, limited
liability company or other entity for the direct or indirect benefit of the undersigned or any immediate family member of the undersigned;
provided, that, in the case of clauses (b), (c) and (d) above, it shall be a condition to any such transfer that (i) the transferee/donee
agrees to be bound by the terms of this Lock-Up Letter Agreement (including, without limitation, the restrictions set forth in the preceding
sentence) to the same extent as if the transferee/donee were a party hereto; and (ii) each party (donor, donee, transferor or transferee)
shall not be required by law (including without limitation the disclosure requirements of the Securities Act of 1933, as amended (the
“Securities Act”), and the Exchange Act) to make, and shall agree to not voluntarily make, any filing or public
announcement of the transfer or disposition prior to the expiration of the 180-day period referred to above; (e) the transfer of shares
to the Company (or withholding of shares of Common Stok by the Company) as payment for the exercise price of any options, or to satisfy
withholding obligations for any equity award granted pursuant to the terms of the Company’s stock option/incentive plans, such
as upon exercise, vesting, lapse of substantial risk of forfeiture, or other similar taxable event, in each case on a “cashless”
or “net exercise” basis (which, for the avoidance of doubt shall not include “cashless” exercise programs involving
a broker or other third party), provided that as a condition of any transfer pursuant to this clause (e), that if the undersigned
is required to file a report under Section 16(a) of the Exchange Act, reporting a reduction in beneficial ownership of shares of Common
Stock or any securities convertible into or exercisable or exchangeable for Common Stock during the Lock-Up Period, the undersigned shall
include a statement in such report, and if applicable an appropriate disposition transaction code, to the effect that such transfer is
being made as a share delivery or forfeiture in connection with a net value exercise, or as a forfeiture or sale of shares solely to
cover required tax withholding, as the case may be; (f) transfers of shares of Common Stock or any security convertible into or exercisable
or exchangeable for Common Stock pursuant to (i) a bona fide third party tender offer made to all holders of the Common Stock, (ii) merger,
(iii) consolidation or (iv) other similar transaction involving a change of control (as defined below) of the Company, including voting
in favor of any such transaction or taking any other action in connection with such transaction, provided, that in the event that
such merger, tender offer or other transaction is not completed, the Common Stock and any security convertible into or exercisable or
exchangeable for Common Stock shall remain subject to the restrictions set forth herein; (g) the vesting of equity awards, the exercise
of warrants or the exercise of stock options granted pursuant to the Company’s stock option/incentive plans or otherwise outstanding
on the date hereof; provided, that the restrictions shall apply to shares of Common Stock issued upon such vesting, exercise or
conversion; (h) the establishment of any, or the continued use of any existing, contract, instruction or plan that satisfies all of the
requirements of Rule 10b5-1 (a “Rule 10b5-1 Plan”) under the Exchange Act, which Rule 10b5-1 Plan is in effect
as of the date of the Underwriting Agreement (and any related filings in connection with such sale or disposition that are required under
the Exchange Act; provided that any such filings shall indicate by footnote disclosure or otherwise (1) that such sale or disposition
was made in connection with a Rule 10b5-1 Plan and (2) the date such Rule 10b5-1 Plan was entered into); provided further, however,
that no sales of Common Stock or securities convertible into, or exchangeable or exercisable for, Common Stock, shall be made pursuant
to a Rule 10b5-1 Plan that is established during the Lock-Up Period prior to the expiration of the Lock-Up Period; provided further,
that the Company does not otherwise voluntarily effect any such public filing or report regarding such Rule 10b5-1 Plan (for the avoidance
of doubt, the Company shall not be prohibited from reporting the establishment of a Rule 10b5-1 Plan in accordance with the applicable
requirements of the Commission); and (i) any demands or requests for, exercise any right with respect to, or take any action in preparation
of, the registration by the Company under the Securities Act of the undersigned’s shares of Common Stock, provided that no transfer
of the undersigned’s shares of Common Stock registered pursuant to the exercise of any such right and no registration statement
shall be filed under the Securities Act with respect to any of the undersigned’s shares of Common Stock during the Lock-Up Period.
For purposes of clause (f) above, “change of control” shall mean the consummation of any bona fide third party tender
offer, merger, purchase, consolidation or other similar transaction the result of which is that any “person” (as defined
in Section 13(d)(3) of the Exchange Act), or group of persons, becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 of the
Exchange Act) of a majority of total voting power of the voting stock of the Company.
It
is understood that, if the Company notifies the Representatives that it does not intend to proceed with the Offering, if the Underwriting
Agreement does not become effective, or if the Underwriting Agreement (other than the provisions thereof which survive termination) shall
terminate or be terminated with the Representatives prior to payment for and delivery of the shares of Common Stock to be sold in the
Offering, the undersigned will be released from its obligations under this Lock-Up Letter Agreement.
The
undersigned understands that the Company and the Representatives will proceed with the Offering in reliance on this Lock-Up Letter Agreement.
Whether
or not the Offering actually occurs depends on a number of factors, including market conditions. Any Offering will only be made pursuant
to the Underwriting Agreement, the terms of which are subject to negotiation between the Company and the Representatives.
This
Lock-Up Letter Agreement shall automatically terminate upon (a) the termination of the Underwriting Agreement prior to the issuance and
delivery of the Shares, (b) the date that either the Company or A.G.P. provides written notice to the other that it has determined not
to proceed with the proposed Offering and, with respect to the Company, is terminating this Lock-Up Letter Agreement on behalf of all
of the Company’s holders of securities subject to a Lock-Up Letter Agreement, provided that the Company and the Representatives
shall not have executed the Underwriting Agreement on or prior to such date. Notwithstanding anything herein to the contrary, this Lock-Up
Letter Agreement shall lapse and become null and void if the closing of the Offering shall not have occurred on or before January 31,
2026.
This
Lock-Up Letter Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the
conflict of laws principles thereof. Delivery of a signed copy of this Lock-Up Letter Agreement by facsimile or e-mail/.pdf transmission
shall be effective as the delivery of the original hereof.
The
undersigned hereby represents and warrants that the undersigned has full power and authority to enter into this Lock-Up Letter Agreement
and that, upon request, the undersigned will execute any additional documents necessary in connection with the enforcement hereof. Any
obligations of the undersigned shall be binding upon the heirs, personal representative, successors and assigns of the undersigned.
[Signature
page follows]
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Very truly yours, |
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(Name) |
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(Signature) |
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(Name of Signatory, in the case of entities – Please Print) |
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(Title of Signatory, in the case of entities – Please Print) |
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Address: ________________________________________ |
EXHIBIT
C
Company
Introduced Accounts
Joe
Stroffolino
Ron
Zelazo Rev. Trust
Stephen
Petersen
World
Total Return Fund
Robby
Routt
Lincoln
Park Capital
Gordon
Holmes
Warberg
Funds
Gary
Routt
Atlas
Lithium Corp.
Ted
M. Routt
Warberg
Special Situations Fund LP
Warberg
Wf Xiii LP
World
Total Return Fund LLLP
