false
0001584754
0001584754
2024-01-25
2024-01-25
iso4217:USD
xbrli:shares
iso4217:USD
xbrli:shares
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
Date of Report (Date of earliest event reported): January 25, 2024
AKOUSTIS TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
Delaware |
|
001-38029 |
|
33-1229046 |
(State or Other Jurisdiction
of Incorporation) |
|
(Commission File Number) |
|
(I.R.S. Employer
Identification Number) |
9805 Northcross Center Court, Suite A
Huntersville, NC 28078
(Address of principal executive offices, including
zip code)
704-997-5735
(Registrant’s telephone number, including
area code)
Not Applicable
(Former name or former address, if changed since
last report)
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General
Instruction A.2. below):
| ☐ | Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange
Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b)
under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c)
under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
Title of Each Class: |
|
Trading Symbol: |
|
Name of each exchange on which registered: |
Common Stock, $0.001 par value |
|
AKTS |
|
The Nasdaq Stock Market LLC
(Nasdaq Capital Market) |
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the
Securities Exchange Act of 1934 (§240.b-2 of this chapter)
Emerging Growth Company ☐
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 Entry into a Material Definitive Agreement.
On January 25, 2024, Akoustis
Technologies, Inc. (the “Company”) entered into an underwriting agreement (the “Underwriting Agreement”) with
Roth Capital Partners, LLC (the “Underwriter”), pursuant to which the Company agreed to issue and sell to the Underwriter
20,000,000 shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”), in an underwritten
public offering (the “Offering”) pursuant to a Registration Statement on Form S-3, which became effective under the Securities
Act of 1933, as amended (the “Securities Act”), on February 15, 2022 (File No. 333-262540) (the “Registration Statement”),
and a related prospectus, including the related preliminary prospectus supplement filed with the Securities and Exchange Commission (the
“SEC”) on January 24, 2024 and the final prospectus supplement filed with the SEC on January 29, 2024. In addition, pursuant
to the Underwriting Agreement, the Company granted the Underwriter an option, exercisable for a period of 30 calendar days from January
25, 2024, to purchase up to an additional 3,000,000 shares of Common Stock solely to cover over-allotments (the “Over-Allotment
Option”), which Over-Allotment Option was exercised in full. The net proceeds from the Offering were approximately $10.4 million,
after deducting the underwriting discount and estimated offering expenses payable by the Company. Under the terms of the Underwriting
Agreement, the Company has agreed to indemnify the Underwriter against certain liabilities, including liabilities under the Securities
Act, or contribute to payments that the Underwriter may be required to make in respect of those liabilities. The representations, warranties
and covenants contained in the Underwriting Agreement were made only for purposes of such agreement and as of specific dates, were solely
for the benefit of the parties to such agreement and may be subject to limitations agreed upon by the contracting parties. The Offering, including the exercise of the Over-Allotment Option, closed on January 29, 2024.
The Underwriting Agreement
is filed as Exhibit 1.1 to this Current Report on Form 8-K, and the foregoing description of the terms of the Underwriting Agreement does
not purport to be complete and is qualified in its entirety by reference to such exhibit, which is incorporated herein by reference. A
copy of the opinion of K&L Gates LLP relating to the validity of the issuance and sale of the shares of Common Stock in the Offering
is attached as Exhibit 5.1 hereto.
Item 8.01 Other Events.
On January 25, 2024 and January
29, 2024, the Company issued press releases with respect to the pricing and the closing of the Offering, respectively. The press releases
are attached as Exhibits 99.1 and 99.2 hereto.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
SIGNATURES
Pursuant to the requirements
of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
|
Akoustis
Technologies, Inc. |
|
|
|
Date: January 29, 2024 |
By: |
/s/ Jeffrey B. Shealy |
|
Name: |
Jeffrey B. Shealy |
|
Title: |
Chief Executive Officer |
2
Exhibit 1.1
AKOUSTIS
TECHNOLOGIES, Inc.
(a Delaware corporation)
Common
Stock
UNDERWRITING AGREEMENT
January 25, 2024
Roth Capital Partners, LLC
As Representative of the Several Underwriters
set forth on Schedule B hereto
888 San Clemente Drive, Suite 400
Newport Beach, CA 92660
Ladies and Gentlemen:
Akoustis Technologies, Inc.,
a Delaware corporation (the “Company”), proposes to issue and sell to the several underwriters named in Schedule
B hereto (the “Underwriters”) pursuant to this Underwriting Agreement (this “Agreement”)
an aggregate of 20,000,000 shares (the “Firm Shares”) of the Company’s common stock, par value $0.001 per share
(the “Common Stock”). In addition, the Company proposes to grant to the Underwriters the option to purchase from the
Company up to an additional 3,000,000 shares of Common Stock, to be purchased at the option of the Underwriters (the “Option
Shares” and, together with the Firm Shares, the “Shares”). Roth Capital Partners, LLC is acting as the representative
of the Underwriters and in such capacity is hereinafter referred to as the “Representative.”
SECTION
1. Sale and Purchase.
On the basis of the representations,
warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and
sell the Firm Shares to the Underwriters, and the Underwriters agree, severally and not jointly (subject to Section 12), to purchase from
the Company the number of Firm Shares as set forth opposite the names of such Underwriters on Schedule B hereto. The Company
has been advised by the Underwriters that they propose to make a public offering of the Shares as soon after this Agreement has become
effective as in their judgment is advisable. The pricing terms of the purchase of the Firm Shares by the Underwriters and the pricing
terms of the offering of the Firm Shares to the public are as set forth in Schedule A hereto.
In addition, the Company hereby
grants to the Underwriters the option to purchase, and upon the basis of the representations, warranties and agreements contained herein
and subject to the terms and conditions herein set forth, the Underwriters shall have the right to purchase from the Company, all or a
portion of the Option Shares, at the same purchase price per share to be paid by the Underwriters to the Company for the Firm Shares as
set forth opposite the names of such Underwriters on Schedule B hereto. This option may be exercised by the Underwriters
any time and from time to time on or before the thirtieth (30th) day following the date hereof, by written notice from the Representative
to the Company, which notice may be electronic (“Option Shares Notice”). The Option Shares Notice shall set forth
the aggregate number of Option Shares as to which the option is being exercised, and the date and time when the Option Shares are to be
delivered (such date and time being herein referred to as the “Option Closing Date”); provided, however,
that the Option Closing Date may be the same date and time as the Closing Date (as defined below), but shall not be earlier than the Closing
Date nor earlier than the second (2nd) business day after the date on which the option for Option Shares shall have been exercised nor
later than the tenth (10th) business day after the date of the Option Shares Notice. As of the Option Closing Date, the Company will issue
and sell to the Underwriters, and the Underwriters will purchase, the number of Option Shares set forth in the Option Shares Notice.
SECTION
2. Payment and Delivery.
Payment of the purchase price
for the Firm Shares shall be made to the Company by same day Federal Funds wire transfer against delivery of the Firm Shares to the Underwriters
through the facilities of The Depository Trust Company for the account of the Underwriters. Such payment and delivery shall be made
at 10:00 A.M., New York time, on January 29, 2024 (the “Closing Date”), which date shall be the second business day
after the date of this Agreement (unless another time or date shall be agreed to by the Representative and the Company). Electronic
transfer of the Firm Shares shall be made to or as instructed by the Representative at the Closing Date in such names and in such denominations
as the Representative shall specify, with any transfer taxes payable in connection with the transfer
of the Firm Shares to the Underwriters duly paid, against payment of the purchase price therefor.
If the option for Option Shares
is exercised, payment of the purchase price for the Option Shares shall be made at the Option Closing Date in the same manner and at the
same office as the payment for the Firm Shares. Electronic transfer of the Option Shares shall be made to or as instructed by the
Representative at the Option Closing Date in such names and in such denominations as the Representative shall specify.
Deliveries of the documents
described in Section 7 with respect to the purchase of the Shares shall be made at the offices of Ellenoff Grossman & Schole
LLP, counsel for the Underwriters, at 10:00 A.M., New York time, on the Closing Date or Option Closing Date, as applicable.
SECTION
3. Representations and Warranties.
(a) Representations
and Warranties by the Company. The Company represents and warrants to the Underwriters as of the Applicable Time (as defined below),
the Closing Date and any Option Closing Date, and agrees with the Underwriters, as follows:
(i) Registration
Statement and Prospectuses. The Company has prepared and filed with the Securities and Exchange Commission (“Commission”)
a shelf registration statement on Form S-3 (File No. 333-262540) under the Securities Act of 1933, as amended (the “1933 Act”),
and the rules and regulation (the “1933 Act Regulations”) of the Commission thereunder, which shelf registration statement
was declared effective by the Commission and the Shares have been and remain eligible for registration by the Company on such registration
statement. Such registration statement, including all amendments and exhibits thereto, the documents incorporated by reference therein
and the documents and information otherwise deemed to be part thereof or included therein pursuant to Rule 430B of the 1933 Act Regulations
is referred to as the “Registration Statement.”
The Registration
Statement has become effective under the 1933 Act. No stop order suspending the effectiveness of the Registration Statement or any post-effective
amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus
(as defined below) has been issued and no proceedings for any of those purposes have been instituted or are pending or, to the Company’s
knowledge, threatened. The Company has complied to the Commission’s satisfaction with each request (if any) from the Commission
for additional information.
Each of the Registration
Statement, as of its effectiveness and at each deemed effective date, (including the information deemed pursuant to Rule 430A under the
1933 Act to be part of the Registration Statement at the effective date) complied, and the Prospectus and any supplements thereto, as
of their respective effective or issue date, complied as to form in all material respects with the requirements of the 1933 Act and the
1933 Act Regulations. Each preliminary prospectus and the Prospectus delivered to the Underwriters for use in connection with this offering
was virtually identical to the electronically transmitted copies thereof filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system (or any successor system) (“EDGAR”), except to the extent permitted by Regulation S-T.
Any registration statement filed by the Company pursuant to Rule 462(b) under the 1933 Act is called the “462(b) Registration
Statement” and, from and after the date and time of filing of the Rule 462(b) Registration Statement, the term “Registration
Statement” shall include the Rule 462(b) Registration Statement.
The documents incorporated
or deemed to be incorporated by reference in the Registration Statement and the Prospectus, when they became effective or at the time
they were filed with the Commission, complied in all material respects with the requirements of the Securities Exchange Act of 1934, as
amended (the “1934 Act”), and the rules and regulations promulgated thereunder (collectively, the “1934 Act
Regulations”).
(ii) Accurate
Disclosure; Certain Defined Terms. Neither the Registration Statement nor any amendment thereto, at its effective time, at the Closing
Date or any Option Closing Date, contained, contains or will contain an untrue statement of a material fact or omitted, omits or will
omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. As of the Applicable
Time, neither (A) the General Disclosure Package nor (B) any individual Issuer Free Writing Prospectus, when considered together with
the General Disclosure Package, included an untrue statement of a material fact or omitted to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were made, not misleading. Neither the Prospectus nor
any amendment or supplement thereto (including any prospectus wrapper), as of its issue date, at the time of any filing with the Commission
pursuant to Rule 424(b), at the Closing Date or at any Option Closing Date, included, includes or will include an untrue statement of
a material fact or omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
The representations
and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement (or any amendment thereto),
the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) made in reliance upon and in conformity with
written information furnished to the Company by the Underwriters through the Representative, specifically for use therein, including the
Underwriter Information.
As used in this Agreement:
“Applicable Time”
means 8:00 am, New York City time, on the date of this Agreement.
“General Disclosure
Package” means any Issuer Free Writing Prospectuses issued at or prior to the Applicable Time and the preliminary prospectus
dated January 24, 2024, as amended (including any documents incorporated therein by reference) and the information included on Schedule
A hereto, all considered together.
“Issuer Free Writing
Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 of the 1933 Act Regulations (“Rule
433”), including without limitation any “free writing prospectus” (as defined in Rule 405 of the 1933 Act Regulations
(“Rule 405”)) relating to the Shares that is (i) required to be filed with the Commission by the Company, (ii) a “road
show that is a written communication” within the meaning of Rule 433(d)(8)(i), whether or not required to be filed with the Commission,
or (iii) exempt from filing with the Commission pursuant to Rule 433(d)(5)(i) because it contains a description of the Shares or of the
offering that does not reflect the final terms, in each case in the form filed or required to be filed with the Commission or, if not
required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g).
“Preliminary Prospectus”
means any preliminary form of the Prospectus.
“Prospectus”
means the base prospectus included in the initial Registration Statement at the time of effectiveness thereof, as supplemented by the
final prospectus supplement relating to the offer and sale of the Shares, in the form filed pursuant to Rule 424(b) under the 1933 Act
Regulations.
“Underwriter Information”
means the information under the heading “Underwriting” in the General Disclosure Package or the Prospectus (or any amendment
or supplement thereto).
All references in this Agreement
to financial statements and schedules and other information which is “contained,” “included” or “stated”
(or other references of like import) in the Registration Statement, any preliminary prospectus or the Prospectus shall be deemed to include
all such financial statements and schedules and other information incorporated or deemed incorporated by reference in the Registration
Statement, any preliminary prospectus or the Prospectus, as the case may be, prior to the time of the execution and delivery of this Agreement
(the “Execution Time”); and all references in this Agreement to amendments or supplements to the Registration Statement,
any preliminary prospectus or the Prospectus shall be deemed to include the filing of any document under the 1934 Act, and the 1934 Regulations,
incorporated or deemed to be incorporated by reference in the Registration Statement, any preliminary prospectus or the Prospectus, as
the case may be, at or after the Execution Time.
(iii) Issuer
Free Writing Prospectuses. Except as disclosed in the Registration Statement, no Issuer Free Writing Prospectus conflicts or will
conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference
therein, and any preliminary or other prospectus deemed to be a part thereof that has not been superseded or modified. Each Issuer Free
Writing Prospectus satisfied, as of its issue date and at all subsequent times to the Applicable Time, all other conditions to use thereof
as set forth in Rules 164 and 433 under the 1933 Act.
(iv) Company
Not Ineligible Issuer. At the time of filing the Registration Statement and any post-effective amendment thereto, at the earliest
time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the 1933
Act Regulations) of the Shares and at the date hereof, the Company was not and is not an “ineligible issuer,” as defined in
Rule 405 under the 1933 Act, including the Company or any subsidiary in the preceding three years not having been convicted of a felony
or misdemeanor or having been made the subject of a judicial or administrative decree or order as described in Rule 405 of the 1933 Regulations
(without taking into account of any determination by the Commission pursuant to Rule 405 of the 1933 Regulations that it is not necessary
that the Company be considered an ineligible issuer), nor an “excluded issuer” as defined in Rule 164 under the 1933 Act.
(v) No
Other Offering Materials. The Company has not distributed and will not distribute any prospectus or other offering material in connection
with the offering and sale of the Shares other than any preliminary prospectus, the General Disclosure Package or the Prospectus or other
materials permitted by the 1933 Act to be distributed by the Company; provided, however, that, the Company has not made and will not make
any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus except in accordance with this Agreement.
(vi) Independent
Accountants. Marcum LLP, who have expressed their opinion with respect to the financial statements and supporting schedules included
or incorporated by reference in the Registration Statement, are independent registered public accountants as required by the 1933 Act,
the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations and the Public Company Accounting Oversight Board, and any non-audit
services provided by Marcum LLP to the Company or any of its subsidiaries have been approved by the Audit Committee of the board of directors
of the Company.
(vii) Financial
Statements. The financial statements included or incorporated by reference in the Registration Statement, the General Disclosure Package
and the Prospectus, together with the related schedules and notes, present fairly in all material respects the consolidated financial
position of the Company and its subsidiaries at the dates indicated and the results of operations, stockholders’ equity and cash
flows for the periods specified; said financial statements have been prepared in conformity with U.S. generally accepted accounting principles
(“GAAP”) applied on a consistent basis throughout the periods involved. The supporting schedules, if any, present fairly
in all material respects, in accordance with GAAP, the information required to be stated therein. All non-GAAP financial information included
in the Registration Statement, the General Disclosure Package and the Prospectus complies with the requirements of Regulation G and Item
10 of Regulation S-K under the 1933 Act; and, except as disclosed in the Registration Statement, General Disclosure Package and the Prospectus,
there are no material off-balance sheet arrangements (as defined in Regulation S-K under the 1933 Act, Item 303(a)(4)(ii)) or any
other relationships with unconsolidated entities or other persons, that may have a material current or, to the Company’s knowledge,
material future effect on the Company’s financial condition, results of operations, liquidity, capital expenditures, capital resources
or significant components of revenue or expenses. Except as included therein, no historical or pro forma financial statements or supporting
schedules are required to be included or incorporated by reference in the Registration Statement, the General Disclosure Package or the
Prospectus under the 1933 Act or the 1933 Act Regulations. The interactive data in eXtensible Business Reporting Language incorporated
by reference in the Registration Statement, the General Disclosure Package and the Prospectus fairly presents in all material respects
the information called for and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(viii) No
Material Adverse Change in Business. Except as otherwise stated therein, since the respective dates as of which information is included
or incorporated by reference, in the Registration Statement, the General Disclosure Package or the Prospectus, (A) there has been no material
adverse change in the condition, financial or otherwise, or in the earnings, business affairs, management, properties, operations or results
of operations of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business
(a “Material Adverse Effect”), (B) there have been no transactions entered into by the Company or any of its subsidiaries,
other than those in the ordinary course of business, that are material with respect to the Company and its subsidiaries considered as
one enterprise, and (C) except as disclosed in the Registration Statement, the General Disclosure Package or the Prospectus, there has
been no dividend or distribution of any kind declared, paid or made by the Company on any class of capital stock.
(ix) Good
Standing of the Company. The Company has been duly organized and is validly existing as a corporation in good standing under the laws
of the State of Delaware and has corporate power and authority to own, lease and operate its properties and to conduct its business as
described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations
under this Agreement; and the Company is duly qualified as a foreign corporation to transact business and is in good standing in each
other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or to be in good standing would not result in a Material Adverse Effect.
(x) Good
Standing of Subsidiaries. Each subsidiary of the Company identified on listed on Exhibit 21.1 to the Company’s Annual Report
on Form 10-K for the year ended June 30, 2023 (each, a “Subsidiary” and, collectively, the “Subsidiaries”)
has been duly organized, is validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization,
has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as described in the
Registration Statement, the General Disclosure Package and the Prospectus and is duly qualified to transact business and is in good standing
in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct
of business, except where the failure to so qualify or to be in good standing would not result in a Material Adverse Effect. Except as
otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding
capital stock of each Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and is owned by the Company,
directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim. None of the outstanding
shares of capital stock of any Subsidiary was issued in violation of the preemptive or similar rights of any securityholder of such Subsidiary.
The only subsidiaries of the Company are the subsidiaries listed on Exhibit 21.1 to the Company’s Annual Report on Form 10-K for
the year ended June 30, 2023 and certain other subsidiaries which, considered in the aggregate as a single subsidiary, do not constitute
a “significant subsidiary” as defined in Rule 1-02 of Regulation S-X.
(xi) Capitalization.
The authorized, issued and outstanding shares of capital stock of the Company are as set forth in the Registration Statement, the General
Disclosure Package and the Prospectus (except for subsequent issuances, if any, pursuant to this Agreement, pursuant to reservations,
agreements or employee benefit plans referred to in the Registration Statement, the General Disclosure Package and the Prospectus or pursuant
to the exercise or conversion of convertible securities or options referred to in the Registration Statement, the General Disclosure Package
and the Prospectus). The outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully
paid and non-assessable. None of the outstanding shares of capital stock of the Company were issued in violation of the preemptive or
other similar rights of any securityholder of the Company.
(xii) Authorization.
This Agreement has been duly authorized, executed and delivered by the Company.
(xiii) Authorization
and Description of Shares. The Shares to be purchased by the Underwriters from the Company have been duly authorized and are validly
issued and, when paid for, will be fully paid and non-assessable; and the sale of the Shares is not subject to the preemptive or other
similar rights of any securityholder of the Company. The Shares conform in all material respects to all statements relating thereto contained
in the Registration Statement, the General Disclosure Package and the Prospectus and such description conforms to the rights set forth
in the instruments defining the same.
(xiv) Registration
Rights. There are no persons with registration rights or other similar rights to have any securities registered for sale pursuant
to the Registration Statement or otherwise registered for sale by the Company under the 1933 Act.
(xv) Absence
of Violations, Defaults and Conflicts. Neither the Company nor any of its subsidiaries is (A) in violation of its charter, by-laws
or similar organizational document, (B) in default in the performance or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument
to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound or to which any of the properties
or assets of the Company or any subsidiary is subject, except for any such obligation, agreement, covenant or condition that has been
duly waived and any such defaults that would not, singly or in the aggregate, result in a Material Adverse Effect, or (C) in violation
of any law, statute, rule, regulation, judgment, order, writ or decree of any arbitrator, court, governmental body, regulatory body, administrative
agency or other authority, body or agency having jurisdiction over the Company or any of its subsidiaries or any of their respective properties,
assets or operations (each, a “Governmental Entity”), except for such violations that would not, singly or in the aggregate,
result in a Material Adverse Effect.
(xvi) No
Resulting Defaults and Conflicts. The execution, delivery and performance by the Company of this Agreement, the sale of the Shares,
the compliance by the Company with the terms hereof and the consummation by the Company of the transactions contemplated hereby have been
duly authorized by all necessary corporate action and do not and will not (i) conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under, any material indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries
is bound or to which any of the properties or assets of the Company or any of its Subsidiaries is subject, (ii) result in any violation
of the provisions of the charter or bylaws (or similar organizational document) of the Company or any of its Subsidiaries or (iii) result
in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory
authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not, individually
or in the aggregate, have a Material Adverse Effect; and no consent, approval, authorization, order, registration or qualification of
or with any such court or governmental agency or body is required for the execution, delivery and performance by the Company of this Agreement,
the sale of the Shares and compliance by the Company with the terms hereof and the consummation of the transactions contemplated hereby,
except as have been made or obtained and except as may be required by and made with or obtained from state securities laws or regulations.
(xvii) Absence
of Labor Dispute. No labor problem or dispute with the employees of the Company or any of its subsidiaries exists or, to the Company’s
knowledge, is threatened or imminent, and the Company is not aware of any existing or imminent labor disturbance by the employees of any
of its or its subsidiaries’ principal suppliers, contractors or customers, that could have a Material Adverse Effect.
(xviii) Absence
of Proceedings. Except as set forth in the Registration Statement, the General Disclosure Package and the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company
or any of its subsidiaries is the subject which would, individually or in the aggregate, have a Material Adverse Effect or would materially
and adversely affect the ability of the Company or its subsidiaries to perform their respective obligations under this Agreement.
(xix) Accuracy
of Exhibits. There are no contracts or documents that are required to be described in the Registration Statement or to be filed as
exhibits thereto that have not been so described and filed as required.
(xx) Absence
of Further Requirements. No filing with, or authorization, approval, consent, license, order, registration, qualification or decree
of, any Governmental Entity is necessary or required for the performance by the Company of its obligations hereunder, in connection with
the Company’s execution, delivery and performance of this Agreement or the consummation of the transactions contemplated by this
Agreement, except such as have been already filed or obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the
rules of the Nasdaq Capital Market (“Nasdaq”), state securities laws or the rules of FINRA.
(xxi) Possession
of Licenses and Permits. The Company and its subsidiaries possess adequate certificates, authorities or permits issued by appropriate
Governmental Entities necessary to conduct the business now operated by them, except where the failure so to possess would not, singly
or in the aggregate, result in a Material Adverse Effect. Neither the Company nor any of its subsidiaries has received any written notice
of proceedings relating to the revocation or modification of any such certificate, authority or permit that, if determined adversely to
the Company or any of its subsidiaries, would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(xxii) Title
to Property. The Company and its subsidiaries have good and marketable title to all property (whether real or personal) owned by them,
in each case, free and clear of all liens, security interests, claims or encumbrances or defects of any kind except such as (A) secure
the promissory note issued by Akoustis, Inc. on January 1, 2023 in connection with its acquisition of GDSI, (B) are described in the Registration
Statement, the General Disclosure Package and the Prospectus, or (C) would not, individually or in the aggregate, have a Material Adverse
Effect. The property held under lease by the Company and its subsidiaries is held by them under valid, subsisting and enforceable leases
with only such exceptions with respect to any particular lease as do not interfere in any material respect with the conduct of the business
of the Company or its subsidiaries.
(xxiii) Intellectual
Property. The Company and each of its subsidiaries owns, possesses, has a valid license to use, or can acquire on reasonable terms,
all Intellectual Property described in the Registration Statement, the General Disclosure Package and the Prospectus, except (x) as stated
in the Registration Statement, the General Disclosure Package or the Prospectus and (y) where the failure to so own, possess, license
or acquire such rights would not result in a Material Adverse Effect. “Intellectual Property” means all patents,
patent applications, provisional patents, trade and service marks, trade and service mark registrations, trade names, copyrights, licenses,
inventions, trade secrets, technology, know-how and other intellectual property. Except as described in the Registration Statement,
in the General Disclosure Package and in the Prospectus or as would not, individually or in the aggregate, be expected to result in a
Material Adverse Effect, (1) there is no pending or, to the Company’s knowledge, threatened, action, suit, proceeding
or claim by others challenging the Company’s or any of its subsidiaries’ rights in or to any such issued or registered Intellectual
Property, and the Company is unaware of any facts which would form a reasonable basis for any such claim; (2) the Intellectual Property
owned by the Company and its subsidiaries, and, to the Company’s knowledge, the Intellectual Property licensed to the Company and
its subsidiaries, has not been adjudged invalid or unenforceable, in whole or in part, and there is no pending or, to the Company’s
knowledge, threatened action, suit, proceeding or claim by others challenging the validity or scope of any such Intellectual Property,
and the Company is unaware of any facts which would form a reasonable basis for any such claim; (3) there is no pending or, to the
Company’s knowledge threatened action, suit, proceeding or claim by others that the Company or any of its subsidiaries infringes,
misappropriates or otherwise violates any Intellectual Property or other proprietary rights of others, neither the Company or any of its
subsidiaries has received any written notice of such claim and the Company is unaware of any other fact which would form a reasonable
basis for any such claim; and (4) to the Company’s knowledge, no employee of the Company or any of its subsidiaries is in or has
been in violation of any term of any employment contract, patent disclosure agreement, invention assignment agreement, non-competition
agreement, non-solicitation agreement, nondisclosure agreement or any restrictive covenant to or with a former employer where the basis
of such violation relates to such employee’s employment with the Company or any of its subsidiaries or actions undertaken by the
employee while employed with the Company or any of its subsidiaries. The Company and its subsidiaries have taken reasonable security
measures to protect the secrecy, confidentiality and value of all of their Intellectual Property, except where failure to do so would
not result in a Material Adverse Effect. All Company internet domain name registrations have been duly maintained and are in full force
and effect, except as would not, individually or in the aggregate, result in a Material Adverse Effect.
(xxiv) Environmental
Laws. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus or would not individually
or in the aggregate be expected to result in a Material Adverse Effect, (i) the Company and its subsidiaries (A) are in compliance with
all applicable federal, state, local and foreign laws, rules, regulations, requirements, decisions and orders relating to the protection
of human health or safety, the environment, hazardous or toxic substances or wastes, pollutants or contaminants (collectively, “Environmental
Laws”), (B) have and are in compliance with all permits, licenses, certificates or other authorizations or approvals required
under applicable Environmental Laws to conduct their respective businesses, and (C) have not received, and have no knowledge of any event
or condition that would reasonably be expected to result in, any notice of any actual or potential liability or claim under or relating
to any Environmental Laws and (ii) there are no costs or liabilities associated with Environmental Laws of or relating to the Company
or its subsidiaries.
(xxv) Accounting
Controls and Disclosure Controls. The Company and each of its subsidiaries set forth in Exhibit 21.1 to the Company’s Annual
Report on Form 10-K for the fiscal year ended June 30, 2023 maintain internal control over financial reporting (as defined under Rule
13a-15 under the 1934 Act Regulations) and a system of internal accounting controls designed to provide reasonable assurances that (A)
transactions are executed in accordance with management’s general or specific authorization; (B) transactions are recorded as necessary
to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets; (C) access to assets
is permitted only in accordance with management’s general or specific authorization; and (D) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as
disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, the Company’s internal control over
financial reporting is effective at a reasonable assurance level and none of the Company, its board of directors and audit committee is
aware of any “significant deficiencies” or “material weaknesses” (each as defined by the Public Company Accounting
Oversight Board) in its internal control over financial reporting, or any fraud, whether or not material, that involves management or
other employees of the Company or its subsidiaries who have a significant role in the Company’s internal controls; and since the
end of the latest audited fiscal year, there has been no change in the Company’s internal control over financial reporting (whether
or not remediated) that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over
financial reporting. The Company’s board of directors has, subject to the exceptions, cure periods and the phase in periods specified
in the applicable stock exchange rules (“Exchange Rules”), validly appointed an audit committee to oversee internal
accounting controls whose composition satisfies the applicable requirements of the Exchange Rules and the Company’s board of
directors and/or the audit committee has adopted a charter that satisfies the requirements of the Exchange Rules. The Company and each
of its subsidiaries maintain an effective system of disclosure controls and procedures (as defined in Rule 13a-15 under the 1934 Act Regulations)
that are designed to provide reasonable assurance that information required to be disclosed by the Company in the reports that it files
or submits under the 1934 Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s
rules and forms, and is accumulated and communicated to the Company’s management, including its principal executive officer or officers
and principal financial officer or officers, as appropriate, to allow timely decisions regarding disclosure.
(xxvi) Compliance
with the Sarbanes-Oxley Act. There is and has been no failure on the part of the Company or, any of the Company’s directors
or officers, in their capacities as such, to comply in all material respects with any provision of Rule 404(a) of Sarbanes-Oxley Act of
2002 and the rules and regulations promulgated in connection therewith.
(xxvii) Payment
of Taxes. The Company and its subsidiaries have timely filed all United States federal income and other material tax returns that
they were required by law to file (taking into account any valid extensions thereof), and all taxes required to be paid by the Company
and each of its subsidiaries that are due and payable have been paid, except for such taxes as are being contested in good faith by appropriate
proceedings and as to which adequate reserves have been established by the Company and its subsidiaries or except where the failure to
pay such taxes would not have a Material Adverse Effect.
(xxviii)
Insurance. The Company and its subsidiaries carry or are entitled to the benefits of insurance, with reputable insurers, in such
amounts and covering such risks as is adequate for the conduct of their respective businesses and the value of their respective properties,
and all such insurance is in full force and effect. Neither the Company nor any of its subsidiaries has (A) received written notice from
any insurer or agent of such insurer that material capital improvements or other expenditures are required or necessary to be made in
order to continue such insurance or (B) any reason to believe that it will not be able (x) to renew its existing insurance coverage as
and when such policies expire or (y) to obtain comparable coverage from similar insurers as may be necessary or appropriate to conduct
its business as now conducted and at a cost that would not result in a Material Adverse Effect.
(xxix)
Investment Company Act. The Company is not required, and upon the sale of the Shares as herein contemplated will not be required,
to register as an “investment company” under the Investment Company Act of 1940, as amended.
(xxx) Absence
of Manipulation. Neither the Company nor any subsidiary or controlled affiliate of the Company nor, to the Company’s knowledge,
any other affiliate of the Company, has taken or will take, directly or indirectly, any action which is designed, or would reasonably
be expected, to cause or result in, or which has constituted, the stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Shares.
(xxxi) Foreign
Corrupt Practices Act. None of the Company, any of its subsidiaries or, to the knowledge of the Company, any director, officer, agent,
employee, affiliate or other person acting on behalf of the Company or any of its subsidiaries is aware of or has taken any action, directly
or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules
and regulations thereunder (the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality
of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or
other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such
term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention
of the FCPA and the Company and, to the knowledge of the Company, its affiliates have conducted their businesses in compliance with the
FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure,
continued compliance therewith.
(xxxii) Money
Laundering Laws. The operations of the Company and its subsidiaries are and have been conducted at all times in compliance with applicable
financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the Uniting
and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), the
money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any Governmental Entity (collectively, the “Money Laundering Laws”);
and no action, suit or proceeding by or before any Governmental Entity involving the Company or any of its subsidiaries with respect to
the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(xxxiii) No
Conflict with Sanctions Laws. Neither the Company nor any of its subsidiaries nor, to
the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries (i) is
the subject or target of any sanctions administered or enforced by the U.S. government (including, without limitation, the Office of Foreign
Assets Control of the U.S. Treasury Department, the U.S. Department of Commerce or the U.S. Department of State), the United Nations Security
Council, the European Union, HM’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”),
(ii) is located, organized or resident in a country or territory that is the subject or target of Sanctions (including, but not limited
to, Crimea, Cuba, Iran, North Korea and Syria) (each a “Sanctioned Country”),
(iii) is a person or entity (“Person”) on the list of “Specially
Designated Nationals and Blocked Persons” or any other Sanctions-related list, or (iv) is owned or otherwise controlled by
any Person on a Sanctions-related list. The Company will not, directly or indirectly, use the proceeds of the offering, or lend, contribute
or otherwise make available such proceeds, to any subsidiary, joint venture partner or other person (i) to fund or facilitate any
activities of or business with any Person that, at the time of such funding or facilitating, is the subject or target of Sanctions, or
is located, organized or resident in a Sanctioned Country, or (ii) in any other manner that will result in a violation by any Person
(including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise) of Sanctions.
(xxxiv) Eligibility
to use Form S-3. The Company meets the conditions for the use of Form S-3 under the 1933 Act and meets the transaction requirements
with respect to General Instruction I.B.1 of Form S-3.
(xxxv) Brokerage
Commissions. Neither the Company nor any of its subsidiaries is a party to any contract, agreement or understanding with any person
(other than this Agreement) that could reasonably be expected to give rise to a valid claim against the Company or any of its subsidiaries
or the Underwriters for a brokerage commission, finder’s fee or like payment in connection with the offering and sale of the Shares.
(xxxvi) Exchange
Rules. Except as described in the Registration Statement, the General Disclosure Package or the Prospectus, the Company is, and after
giving effect to the sale of Shares will be, in compliance in all material respects with all applicable corporate governance requirements
set forth by Nasdaq. No approval of stockholders of the Company under the rules and regulations of Nasdaq is required for the Company
to deliver the Shares to the Underwriters.
(xxxvii) Six
Month Period Prior to Offering. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus,
the Company has not sold, issued or distributed any shares of Common Stock during the six-month period preceding the date hereof, including
any sales pursuant to Rule 144A under, or Regulation D or S of, the 1933 Act, other than shares issued pursuant to employee benefit
plans, qualified stock option plans or other employee or consultant compensation plans or pursuant to outstanding convertible notes, options,
restricted stock units, rights or warrants.
(xxxviii) Cybersecurity;
Data Protection. The Company and its subsidiaries’ information technology assets and equipment,
computers, systems, networks, hardware, software, websites, applications and databases (collectively, “IT Systems”)
are adequate for, and operate and perform in all material respects as required in connection with the operation of the business of the
Company and its subsidiaries as currently conducted, free and clear of all material bugs, errors, defects, Trojan horses, time bombs,
malware and other corruptants. The Company and its subsidiaries have implemented and maintained commercially reasonable controls, policies,
procedures, and safeguards to maintain and protect their material confidential information and the integrity, continuous operation, redundancy
and security of all IT Systems and data (including all personal, personally identifiable, sensitive, confidential or regulated data (“Personal
Data”)) used in connection with their businesses, and there have been no breaches, violations,
outages or unauthorized uses of or accesses to same, except for those that have been remedied without material cost or liability. The
Company and its subsidiaries are presently in material compliance with all applicable laws or statutes and all judgments, orders, rules and
regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating
to the privacy and security of IT Systems and Personal Data and to the protection of such IT Systems and Personal Data from unauthorized
use, access, misappropriation or modification.
(xxxix) Related
Party Transactions. No relationship, direct or, to the Company’s knowledge, indirect,
exists between or among any of the Company or any affiliate of the Company, on the one hand, and any director, officer, member, stockholder,
customer or supplier of the Company or any affiliate of the Company, on the other hand, which is required by the 1933 Act to be disclosed
in the Registration Statement which is not so disclosed in the Registration Statement. Except as otherwise disclosed in the Registration
Statement, there are no outstanding loans, advances (except advances for business expenses in the ordinary course of business) or guarantees
of indebtedness by the Company or any affiliate of the Company to or for the benefit of any of the officers or directors of the Company
or any affiliate of the Company or any of their respective family members.
(xl) Statistical
and Market-Related Data. Any third-party statistical and market-related data included in the Registration Statement, the General Disclosure
Package or the Prospectus are based on or derived from sources that the Company reasonably and in good faith believes are reliable and
accurate in all material respects and such data agree with the sources from which they are derived.
(b) Officer’s
Certificates. Any certificate signed by any officer of the Company or any of its subsidiaries that is delivered to the Underwriters
or to counsel for the Underwriters shall be deemed a representation and warranty by the Company to the Underwriters as to the matters
covered thereby.
SECTION
4. Covenants of the Company. The Company covenants with the Underwriters as follows:
(a) Compliance
with Securities Regulations and Commission Requests. The Company, subject to Section 4(b), will comply with the requirements of Rule
430B, and will notify the Underwriters promptly, and confirm the notice in writing, (i) when any post-effective amendment to the Registration
Statement shall become effective or any amendment or supplement to the Prospectus shall have been filed (other than an amendment or supplement
providing solely for the determination of the terms of an offering of securities unless related to an offering of Shares), (ii) of the
receipt of any comments from the Commission with respect to the Registration Statement or any amendment or supplement to the Prospectus,
(iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus,
including any document incorporated by reference therein 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 thereto or of any order preventing
or suspending the use of any preliminary prospectus 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(e) of the 1933 Act concerning the Registration Statement, and (v) if the Company becomes the subject of a proceeding under
Section 8A of the 1933 Act in connection with the offering of the Shares. The Company will effect all filings required under Rule 424(b),
in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it
deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing
by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort
to prevent the issuance of any stop order, prevention or suspension and, if any such order is issued, to obtain the lifting thereof at
the earliest possible moment.
(b) Continued
Compliance with Securities Laws. The Company will comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 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 General 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 1933 Act Regulations (“Rule 172”), would be) required by the 1933 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 Registration Statement, the General Disclosure Package or
the Prospectus in order that the Registration Statement, the General 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 General Disclosure Package or the Prospectus, as the case may be, in order to comply with the requirements
of the 1933 Act or the 1933 Act Regulations, the Company will promptly (A) give the Underwriters 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 General Disclosure
Package or the Prospectus comply with such requirements and, a reasonable amount of time prior to any proposed filing or use, furnish
the Underwriters 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 Underwriters or counsel for the Underwriters shall
reasonably object. The Company will furnish to the Underwriters such number of copies of such amendment or supplement as the Underwriters
may reasonably request. The Company has given the Underwriters notice of any filings made by it pursuant to the 1934 Act or 1934 Act Regulations
within 48 hours prior to the Applicable Time; the Company will give the Underwriters notice of its intention to make any such filing from
the Applicable Time to the Closing Date and will furnish the Underwriters with copies of any such documents a reasonable amount of time
prior to such proposed filing, as the case may be, and, subject to the requirements of applicable laws and regulations, will not file
or use any such document to which the Underwriters or counsel for the Underwriters shall reasonably object.
(c) Delivery
of Registration Statements. To the extent not available through EDGAR, the Company will furnish or deliver to the Underwriters and
counsel for the Underwriters, without charge, upon request, (i) copies of the Registration Statement as originally filed and each amendment
thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated
by reference therein) and (ii) copies of all consents and certificates of experts.
(d) Delivery
of Prospectuses. The Company has delivered to the Underwriters as many copies of each preliminary prospectus as the Underwriters reasonably
requested, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will furnish
to the Underwriters 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 1933 Act, such number of copies of the Prospectus (as amended or supplemented) as the Underwriters
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.
(e) Blue
Sky Qualifications. To take promptly from time to time such actions as the Representative may reasonably request to qualify the Shares
for offering and sale under the securities or Blue Sky laws of such jurisdictions (domestic or foreign) as the Representative may designate
and to continue such qualifications in effect, and to comply with such laws, for so long as required to permit the offer and sale of Shares
in such jurisdictions; provided that the Company and its subsidiaries shall not be obligated to (i) qualify as foreign corporations
in any jurisdiction in which they are not so qualified, (ii) to file a general consent to service of process in any jurisdiction or (iii)
subject themselves to taxation in any such jurisdiction if they are not otherwise so subject. The parties acknowledge and agree
that to the extent that the Shares qualify as Covered Securities (as defined under Section 18 of the 1933 Act), no such actions shall
be required with respect to the qualification of the Shares in any state.
(f) Rule
158. The Company will timely file such reports pursuant to the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes of, and to provide to the Underwriters the benefits contemplated
by, the last paragraph of Section 11(a) of the 1933 Act.
(g) Listing.
The Company is in compliance with the listing and maintenance criteria applicable to issuers with securities listed on the Nasdaq Capital
Market, and the Company has taken no action designed to, or likely to have the effect of, delisting the Shares from Nasdaq nor has the
Company received any notification that Nasdaq is contemplating terminating such listing.
(h) FINRA
Filing. The Company will use its reasonable best efforts to assist the Underwriters, if requested by the Underwriters, with any filings
with FINRA and obtaining clearance from FINRA as to the amount of compensation allowable or payable to the Underwriters.
(i) 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 1933 Act, will file all documents required to be filed with the Commission pursuant
to the 1934 Act within the time periods required by the 1934 Act and 1934 Act Regulations.
(j) Issuer
Free Writing Prospectuses. The Company agrees that, unless it obtains the prior written consent of the Representative and subject
to the requirements of the 1934 Act and the 1934 Act Regulations, it will 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; provided that the Representative will be deemed
to have consented to any “road show that is a written communication” within the meaning of Rule 433(d)(8)(i) that has been
reviewed by the Representative. The Company represents that it has treated or agrees that it will treat each such free writing prospectus
consented to, or deemed consented to, by the Representative 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 (other than with respect to any Underwriter Information), the Company will promptly notify the Representative
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.
(k) Communications
Prior to Closing. Prior to the Applicable Time and the Closing Date, the Company will not issue any press release or other communication
directly or indirectly or hold any press conference with respect to the Company, its condition, financial or otherwise, or earnings, business
affairs or business prospects (except for routine oral marketing communications in the ordinary course of business and consistent with
the past practices of the Company and of which the Representative is notified), without the prior written consent of the Representative,
unless in the judgment of the Company and its counsel, and after notification to the Representative, such press release or communication
is required by law or applicable stock exchange rules.
(l) Company
Lock-Up. For a period commencing on the date hereof and ending on the 90th day after the closing of the Offering (the
“Lock-Up Period”), the Company agrees not to, directly or indirectly, without the prior written consent of the
Representative, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device that is designed
to, or would be reasonably expected to, result in the disposition by any person at any time in the future of) any shares of Common
Stock or securities convertible into or exchangeable for Common Stock or sell or grant options, rights or warrants with respect to
any shares of Common Stock or securities convertible into or exchangeable for Common Stock, (2) 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 such
shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common
Stock or other securities, in cash or otherwise, (3) file or cause to be filed a registration statement, including any amendments,
with respect to the registration under the 1933 Act for the offer and sale by the Company of any shares of Common Stock or
securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company or (4) publicly
disclose the intention to do any of the foregoing. The restrictions contained in the preceding sentence shall not apply to any one
or more of the following: (A) the Shares to be sold hereunder and any post-effective amendments to the Registration Statement filed
consistent with the terms of this Agreement, (B) the issuance or grant of shares of Common Stock, restricted stock awards,
restricted stock units, performance units, options to purchase Common Stock or units pursuant to employee benefit plans, qualified
stock option plans or other employee compensation plans in effect on the date of this Agreement or pursuant to currently outstanding
restricted stock units, performance units, options, warrants or rights, (C) the issuance of shares of Common Stock upon the
conversion of convertible notes outstanding on the date hereof and described in the Prospectus, or as payment of accrued interest
thereon, as make-whole payments made in connection with certain conversions thereof or as payments made pursuant thereto in
connection with qualifying fundamental changes to the Company, (D) the filing by the Company of any registration statement on Form
S-8 in respect of any employee benefit plan, qualified stock option plan or other employee compensation plan in effect on the date
hereof and described in the Prospectus, (E) any shares of Common Stock that may be issuable to Tai-Saw Technology Co., Ltd.
(“TST”) pursuant to the acquisition agreement among the Company, TST and other parties thereto dated October 15,
2021, (F) the announcement of entry into a definitive agreement with respect to any strategic partnership, joint venture,
collaboration, merger, co-promotion or distribution agreement or acquisition agreement and any related public disclosures provided
that no shares of Common Stock are issued pursuant thereto prior to the expiration of the Lock-Up Period, (G) shares of Common Stock
to be issued to one or more counterparties in connection with the consummation of a strategic partnership, joint venture,
collaboration, merger, co-promotion or distribution arrangement, or the acquisition or in-licensing of any business products or
technologies; provided, that the aggregate number of shares of Common Stock issued under this subsection (H) shall not exceed 5% of
the number of shares of Common Stock of the Company outstanding as of the date hereof; and provided further, that prior to such
issuance, each recipient of such shares under this subsection (I) shall execute and deliver to the Representative a Lock-Up
Agreement (as defined below) substantially in the form of Schedule D hereto.
(m) Lock-Up Agreements.
The Company agrees to cause each officer and director set forth on Schedule C hereto to furnish to the Underwriters, prior to
the date of this Agreement, a letter or letters, substantially in the form of Schedule D hereto (the “Lock-Up Agreements”).
The Company will issue stop-transfer instructions to the transfer agent for the Common Stock with respect to the Lock-Up Agreements.
SECTION
5. Payment of Expenses.
(a) All
out-of-pocket expenses of the Company incident to the performance of its obligations under this Agreement shall be borne by the Company,
including, without limiting the generality of the foregoing, the following: (i) the accounting fees of the Company; (ii) the fees and
disbursements of counsel for the Company; (iii) all costs and expenses related to the transfer and delivery of the Shares to the Underwriters;
(iv) the cost of printing and delivering to the Underwriters copies of the Registration Statement, the preliminary prospectus, any Issuer
Free Writing Prospectus, the Prospectus, this Agreement, any Blue Sky survey and, in each case, any supplements or amendments thereto,
as may be reasonably requested by the Underwriters; (v) the filing fees of the Commission, if any; (vi) the filing fees and expenses incident
to securing any required review by FINRA of the terms of the sale of the Shares; (vii) the cost of printing certificates, if any, representing
the Shares; (viii) the costs and charges of any transfer agent, registrar or depositary; (ix) the fees and expenses associated with listing
the Shares on Nasdaq; (x) any roadshow expenses of the Company, including, without limiting the generality of the foregoing, the costs
and expenses of the Company relating to the production of roadshow slides and graphics, communication and electronic marketing expenses,
(xi) all costs of background investigations; (xii) all costs of Company and the Representative personnel, including but not limited to,
commercial or charter air travel and local hotel accommodations and transportation and (xiii) the reasonable and documented fees and disbursements
of counsel for the Underwriters, including reasonable and documented fees and disbursements in connection with qualification under FINRA
regulations and state securities or Blue Sky laws. The Company agrees to reimburse the Representative for any accountable, bona fide costs
and expenses actually incurred by the Underwriters in connection with their services under this Agreement, including in respect of the
foregoing clauses (xi) - (xiii), up to a maximum aggregate amount of $100,000 (the “Expense Cap”).
(b) Termination
of Agreement. If this Agreement is terminated by the Underwriters in accordance with the provisions of Section 6, Section 10 or Section
11 hereof, the Company shall reimburse the Underwriters for all of their reasonable, documented out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters, up to the Expense Cap.
SECTION
6. Conditions of Underwriters’ Obligations. The obligations of the Underwriters hereunder are subject
to the accuracy, when made and as of the Applicable Time and as of the Closing Date or any Option Closing Date, of the representations
and warranties of the Company contained herein, to the accuracy of the statements made in certificates of any officer of the Company or
any of its subsidiaries delivered pursuant to the provisions hereof, to the performance by the Company of its covenants and obligations
hereunder, and to the following further conditions:
(a) Effectiveness
of Registration Statement. The Registration Statement has become effective and at the Closing Date or 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
1933 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, threatened; and the Company has complied,
to the Commission’s satisfaction, with each request (if any) from the Commission for additional information.
(b) Contents
of Registration Statement. The Representative shall not have discovered and disclosed to the Company on or prior to the Applicable
Time, Closing Date or any Option Closing Date 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 General Disclosure Package, any Issuer Free Writing Prospectus 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 light of the circumstances in which they were made, not misleading.
(c) No
Material Adverse Change. Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or
otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries taken as a whole which, in the
judgment of the Representative, is material and adverse and makes it impractical or inadvisable to market the Shares; (ii) any downgrading
in the rating of any debt securities or preferred stock of the Company by any “nationally recognized statistical rating organization”
(as defined in Section 3(a)(62) of the Exchange Act), or any public announcement that any such organization has under surveillance
or review its rating of any debt securities or preferred stock of the Company (other than an announcement with positive implications of
a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Company has been placed
on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates
or exchange controls the effect of which is such as to make it, in the judgment of the Representative, impractical to market or to enforce
contracts for the sale of the Shares, whether in the primary market or in respect of dealings in the secondary market; (iv) any suspension
or material limitation of trading in securities generally on the Nasdaq Stock Market, or any setting of minimum or maximum prices for
trading on such exchange; (v) or any suspension of trading of any securities of the Company on the Nasdaq Capital Market; (vi) any
banking moratorium declared by any U.S. federal or New York authorities; (vii) any major disruption of settlements of securities,
payment, or clearance services in the United States or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism
involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the
judgment of the Representative, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency is such as
to make it impractical or inadvisable to market the Shares or to enforce contracts for the sale of the Shares.
(d) Opinion
of Counsel and Negative Assurance Letter for Company. At the Closing Date and in connection with any Option Closing Date, the Representative
shall have received the opinion and negative assurance letter, dated the Closing Date or Option Closing Date, as applicable, of K&L
Gates LLP, special counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(e) Negative
Assurance Letter for Underwriters. At the Closing Date, the Representative shall
have received the negative assurance letter, dated the Closing Date, of Ellenoff Grossman & Schole LLP, special counsel for the Underwriters.
(f) Officers’
Certificates. At the Closing Date and in connection with any Option Closing Date, there shall not have been, since the date hereof
or since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus,
any material adverse change in the condition, financial or otherwise, or in the earnings or business affairs of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of business, and the
Representative shall have received a certificate, of an executive officer of the Company and a principal financial or accounting officer
of the Company, in which such officers shall state that: the representations and warranties of the Company in this Agreement are true
and correct as of the Closing Date or any Option Closing Date; the Company has complied in all material respects with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder at or prior to such Closing Date or any such Option Closing
Date; no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have
been instituted or, to their knowledge, are contemplated by the Commission; and, subsequent to the date of the most recent financial statements
in the General Disclosure Package, there has been no Material Adverse Effect except as set forth in the General Disclosure Package or
as described in such certificate.
(g) CFO
Certificate. On the date of this Agreement, the Closing Date and any Option Closing Date, the Representative shall have received a
certificate, dated the respective dates of delivery thereof and addressed to the Underwriters,
of its Chief Financial Officer with respect to certain financial data contained in the Registration Statement, the General Disclosure
Package and the Prospectus, providing “management comfort” with respect to such information, in form and substance reasonably
satisfactory to the Representative.
(h) Auditor
Comfort Letter. At the Execution Time, the Representative shall have received from Marcum LLP a letter, dated such date, in form and
substance satisfactory to the Representative, together with signed or reproduced copies of such letter for each of the other Underwriters
containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters
with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure
Package and the Prospectus.
(i) Bring-down
Comfort Letter. At the Closing Date and any Option Closing Date, the Representative shall have received from Marcum LLP a letter,
dated as of the Closing Date or Option Closing Date, to the effect that they reaffirm the statements made in the letter furnished pursuant
to subsection (h) of this Section, except that the specified date referred to shall be a date not more than two business days prior to
the Closing Date or Option Closing Date.
(j) Lock-Up
Agreements. At or prior to the Execution Time, the Representative shall have received the written Lock-Up Agreements substantially
in the form attached as Schedule D from each of the Company’s officers and directors listed in Schedule C.
(k) Additional
Documents. At the Closing Date and any Option Closing Date, counsel for the Underwriters shall have been furnished with such documents
as they may reasonably require from the Company for the purpose of enabling them to pass upon the sale of the Shares as herein contemplated,
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 sale of the Shares as herein contemplated shall be satisfactory
in form and substance to the Representative and counsel for the Underwriters.
SECTION
7. Indemnification.
(a) Indemnification
of Underwriters by the Company. The Company agrees to indemnify and hold harmless each Underwriter, its affiliates and each of its
and their respective directors, officers, members, employees, representatives and agents and their respective affiliates (as such term
is defined in Rule 501(b) under the 1933 Act (each, an “Affiliate”)), its selling agents and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act (each, an “Indemnified
Party”) as follows:
(i) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of or based on any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including any information deemed
to be a part thereof pursuant to Rule 430B, or the omission or alleged omission therefrom of a material fact required to be stated therein
or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material
fact included in any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto),
or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement
of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section
7(d) below) any such settlement is effected with the written consent of the Company;
(iii) against
any and all reasonable, documented out-of-pocket expenses, as incurred (including the reasonable fees and disbursements of counsel chosen
by the Representative), incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement
shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged
untrue statement or omission made in the Registration Statement (or any amendment thereto), including any information deemed to be a part
thereof pursuant to Rule 430B, the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) in reliance upon
and in conformity with the Underwriter Information.
(b) Indemnification
of Company. The Underwriters agree to indemnify and hold harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection
(a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto), including any information deemed to be a part thereof pursuant to Rule
430B, the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with
the Underwriter Information.
(c) Actions
against Parties; Notification. Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result
thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement.
In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, if any, to assume the defense thereof, with counsel selected in accordance with the next sentence,
and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying
party shall not be liable to such indemnified party under this Section 7 for any legal expenses of other counsel or any other expenses,
in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable, documented
out-of-pocket costs of investigation; provided, however, the indemnifying party shall not, under any of the circumstances described in
clauses (i), (ii), (iii) and (iv) below, have the right to assume or direct the defense thereof and shall be liable to such indemnified
party under this Section 7 for any reasonable, documented out-of-pocket legal expenses of other counsel or any other reasonable, documented
out-of-pocket expenses in connection with the defense thereof if, in the reasonable judgment of the indemnified party (i) the use of the
counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (ii)
representation of the indemnified party by such counsel would be inappropriate due to differing interests between the indemnifying party
and any indemnified party, (iii) there are likely to be defenses available to the indemnified party that are different from, or in addition
to, the defenses available to the indemnifying party, or (iv) the indemnifying party fails to use reasonable diligence in defending against
such action. In the case of parties indemnified pursuant to Section 7(a) or 7(b) above, counsel to the indemnified parties shall be selected
by the Representative, and, in the case of parties indemnified pursuant to Section 7(c) above, counsel to the indemnified parties shall
be selected by the Company. An indemnifying party may participate at its own expense in the defense of any such action; provided, however,
that counsel to the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to the indemnified
party. In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions
in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties (which consent shall not be unreasonable withheld), settle or compromise or consent to the
entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 or Section
8 hereof (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent
(i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding
or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) Settlement
without Consent if Failure to Reimburse. If at any time an indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 7(a)(ii) or Section 7(b)(ii) effected without its written consent if (i) such settlement is entered into
more than 45 days after receipt by such indemnifying party of the aforesaid request for reimbursement, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 45 days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement or shall not
have disputed in good faith the indemnified party’s entitlement to such reimbursement.
SECTION
8. Contribution. To the extent the indemnification provided for in Section 7 hereof is for any reason unavailable
to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by
the Company, on the one hand, and the Underwriters, on the other hand, from the offering of the Shares pursuant to this Agreement or (ii)
if the allocation provided by clause (i) 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 of the Underwriters,
on the other hand, in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses,
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 hand, in connection with the offering of the Shares pursuant to this
Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Shares pursuant
to this Agreement (before deducting expenses) received by the Company, on the one hand, and the total underwriting discounts and commissions
received by the Underwriters, on the other hand, in each case as set forth on the cover of the Prospectus, bear to the aggregate public
offering price of the Shares as set forth on the cover of the Prospectus.
The relative fault of the
Company, on the one hand, and the Underwriters, on the other hand, shall be determined by reference to, among other things, whether any
such 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 by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Company and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this Section 8 were determined by pro rata allocation or by
any other method of allocation which does not take account of the equitable considerations referred to above in this Section 8. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 8 shall
be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions
of this Section 8, the Underwriters shall not be required to contribute any amount in excess of the amount by which the total price at
which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which the
Underwriters have otherwise been required to pay by reason of any 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 1933 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
For purposes of this Section
8, each person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and
the Underwriter’s Affiliates and selling agents shall have the same rights to contribution as such Underwriter; and each director
of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Company.
SECTION
9. Representations, Warranties and Agreements to Survive. All representations, warranties and agreements contained
in this Agreement or in certificates of officers of the Company or any of its subsidiaries submitted pursuant hereto, shall remain operative
and in full force and effect regardless of (i) any investigation made by or on behalf of the Underwriters or their Affiliates or selling
agents, any person controlling the Underwriter, its officers or directors or any person controlling the Company and (ii) delivery of and
payment for the Shares.
SECTION
10. Termination of Agreement. If any condition specified in Section 6 shall not have been fulfilled when and
as required to be fulfilled, this Agreement may be terminated by the Underwriters by notice to the Company at any time at or prior to
Closing Date or any Option Closing Date. Any termination pursuant to the foregoing sentence or pursuant to Section 11 or Section 12 shall
be without liability of any party to any other party except as provided in such Section 5(b), 6, 11 or 12, as applicable, and except that
Sections 5(b), 7, 8, 9, 13, 16 and 17 hereof shall survive any such termination and remain in full force and effect.
SECTION
11. Default by the Company. If the Company shall fail at the Closing Date (or, in the case of an Option Closing
Date that is subsequent to the Closing Date for the Firm Shares) to sell the number of Shares that it is obligated to sell hereunder,
then this Agreement shall terminate without any liability on the part of any non-defaulting party; provided, however, that the provisions
of Sections 5, 7, 8, 9, 13, 16 and 17 shall remain in full force and effect.
SECTION
12. Default by the Underwriters. If, on the Closing Date or an Option Closing Date, as the case may be, any
one or more of the Underwriters shall fail or refuse to purchase Shares that it has or they have agreed to purchase hereunder on such
date, and the aggregate number of Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase is
not more than one-tenth of the aggregate number of the Shares to be purchased on such date, the other Underwriters shall be obligated
severally in the proportions that the number of Shares set forth opposite their respective names in Schedule B bears to
the aggregate number of Shares set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as the
Underwriters may specify, to purchase the Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase
on such date; provided that in no event shall the number of Shares that any Underwriter has agreed to purchase pursuant to this
Agreement be increased pursuant to this Section 12 by an amount in excess of one-ninth of such number of Shares without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Shares and the
aggregate number of Shares with respect to which such default occurs is more than one-tenth of the aggregate number of Shares to be purchased
on such date, and arrangements satisfactory to the Underwriters and the Company for the purchase of such Shares are not made within 36
hours after such default, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter or the Company;
provided, however, that the provisions of Sections 5, 7, 8, 9, 13, 16 and 17 shall remain in full force and effect. If, on an Option Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase Option Shares and the aggregate number of Option Shares with respect
to which such default occurs is more than one-tenth of the aggregate number of Option Shares to be purchased on such Option Closing Date,
the non-defaulting Underwriters shall have the option to (i) terminate their obligation hereunder to purchase the Option Shares to
be sold on such Option Closing Date or (ii) purchase not less than the number of Option Shares that such non-defaulting Underwriters
would have been obligated to purchase in the absence of such default. Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under this Agreement.
SECTION
13. Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have
been duly given if mailed or transmitted by e-mail. Notices to the Representative shall be directed to Roth Capital Partners, LLC at 888
San Clemente Drive, Suite 400, Newport Beach, CA, 92660 attention of Aaron M. Gurewitz, Head of Equity Capital Markets (agurewitz@roth.com),
and a copy to Ellenoff Grossman & Schole LLP, 1345 Avenue of the Americas, New York, NY 10105, attention of Charles Phillips, Esq.
(cphillips@egsllp.com); and notices to the Company shall be directed to it at Akoustis Technologies, Inc., 9805 Northcross Center Court,
Suite A, Huntersville, North Carolina 28078, attention of Andrew Wright, Esq. (dwright@akoustis.com), with a copy to K&L Gates LLP,
300 South Tryon Street, Suite 1000, Charlotte, North Carolina 28202, attention of Sean M. Jones, Esq. (sean.jones@klgates.com) and Coleman
Wombwell, Esq. (coleman.wombwell@klgates.com).
SECTION
14. No Advisory or Fiduciary Relationship. The Company acknowledges and agrees that (a) the purchase and sale
of the Shares pursuant to this Agreement, including the determination of the public offering price of the Shares and any related discounts
and commissions, is an arm’s-length commercial transaction between the Company, on the one hand, and the Underwriters, on the other
hand, (b) in connection with the offering of the Shares and the process leading thereto, each Underwriter is and has been acting solely
as a principal and is not the agent or fiduciary of the Company, any of its subsidiaries, or its respective stockholders, creditors, employees
or any other party, (c) no Underwriter has assumed or will assume an advisory or fiduciary responsibility in favor of the Company with
respect to the offering of the Shares or the process leading thereto (irrespective of whether the Underwriters has advised or is currently
advising the Company or any of its subsidiaries on other matters) and the Underwriters have no obligation to the Company with respect
to the offering of the Shares except the obligations expressly set forth in this Agreement, (d) each Underwriter and their respective
affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company, and (e) the Underwriters
have not provided any legal, accounting, regulatory or tax advice with respect to the offering of the Shares and the Company has consulted
its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate.
SECTION
15. Parties. This Agreement shall each inure to the benefit of and be binding upon the Underwriters, the Company
and their respective successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person,
firm or corporation, other than the Underwriters, the Company and their respective successors and the controlling persons and officers
and directors referred to in Sections 8 and 9 and their heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriters, the Company and their respective successors, and said controlling persons
and officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Shares from the Underwriters shall be deemed to be a successor by reason merely of such purchase.
SECTION
16. Trial by Jury. Each of the Company (on its behalf and, to the extent permitted by applicable law, on behalf
of its stockholders and affiliates) and 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.
SECTION
17. GOVERNING LAW. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF, THE STATE OF NEW YORK WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS.
SECTION
18. TIME. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION
19. Partial Unenforceability. The invalidity or unenforceability of any Section, paragraph or provision of
this Agreement shall not affect the validity or enforceability of any other Section, paragraph or provision hereof. If any Section, paragraph
or provision of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor
changes (and only such minor changes) as are necessary to make it valid and enforceable.
SECTION
20. 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 sale of Shares 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 20
shall relieve any Underwriter of any responsibility or liability it may otherwise bear in connection with activities in violation of applicable
securities laws, rules or regulation.
SECTION
21. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed
to be an original, but all such counterparts shall together constitute one and the same Agreement.
SECTION
22. Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction
hereof.
Signature Page Follows
If the foregoing is in accordance
with your understanding of our agreement, please sign and return a counterpart hereof, whereupon this instrument, along with all counterparts,
will become a binding agreement among the Underwriters and the Company in accordance with its terms.
Very truly yours,
COMPANY:
|
AKOUSTIS TECHNOLOGIES, INC. |
|
|
|
|
|
By: |
/s/ Kenneth E. Boller |
|
|
Name: |
Kenneth E. Boller |
|
|
Title: |
Chief Financial Officer |
CONFIRMED AND ACCEPTED,
as of the date first above written:
ROTH CAPITAL PARTNERS, LLC
By: |
/s/ Aaron M. Gurewitz |
|
|
Name: |
Aaron M. Gurewitz |
|
|
Title: |
Head of Capital Markets |
|
SCHEDULE A
Number of Firm Shares to be Sold by the Company: 20,000,000
Number of Option Shares to be Sold by the Company: 3,000,000
Public Offering Price: $0.50 per Share
Underwriting Discount: $0.03 per Share
Maximum Expected Proceeds to the Company (before underwriting discounts
and expenses): Approximately $11,500,000 (assuming sale of Option Shares in full)
SCHEDULE B
Underwriters |
|
Number of Shares |
Roth Capital Partners, LLC |
|
20,000,000 |
SCHEDULE C
Persons Subject to Lock-Up
SCHEDULE D
Form of Lock-up Agreement
January__, 2024
Roth Capital Partners, LLC
888 San Clemente Drive, Suite 400
Newport Beach, CA 92660
Re: Akoustis Technologies,
Inc. (the “Company”) - Restriction on Stock Sales
This letter agreement is
delivered to you pursuant to the Underwriting Agreement (the “Underwriting Agreement”) to be entered into by the Company
and Roth Capital Partners, LLC, as representative of the underwriters (the “Representative”) named therein. Upon the
terms and subject to the conditions of the Underwriting Agreement, the Underwriters intend to effect a public offering (the “Offering”)
of shares of Common Stock, $0.001 par value per share, of the Company (the “Shares”). Terms used herein, but not defined,
shall have the meaning ascribed to them in the Underwriting Agreement.
The undersigned recognizes
that it is in the best financial interests of the undersigned, as an officer or director, or an owner of Common Stock, options, warrants,
performance units or other securities convertible into or exchangeable for Common Stock of the Company (the “Company Securities”),
that the undersigned not sell Company Securities in the public market for a period beginning with the date first above written about and
ending 90 days following the closing of the Offering.
The undersigned further
recognizes that the Company Securities held by the undersigned are, or may be, subject to certain restrictions on transferability, including
those imposed by United States federal securities laws. Notwithstanding these restrictions, the undersigned has agreed to enter into this
letter agreement to further assure the Underwriters that the Company Securities of the undersigned, now held or hereafter acquired, will
not enter the public market at a time that might impair the underwriting effort.
Therefore, as an inducement
to the Underwriters to execute the Underwriting Agreement, the undersigned hereby acknowledges and agrees that the undersigned will not,
without the prior written consent of the Representative, (1) offer, sell, contract to sell, pledge, grant any option to purchase or otherwise
dispose of (collectively, a “Disposition”) any Company Securities or any securities convertible into or exercisable
or exchangeable for, or any rights to purchase or otherwise acquire, any Company Securities held by the undersigned or acquired by the
undersigned after the date hereof, or that may be deemed to be beneficially owned by the undersigned (collectively, the “Lock-Up
Shares”), pursuant to the Rules and Regulations promulgated under the Securities Act of 1933, as amended (the “Act”),
and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), for a period commencing on the date hereof
and ending 90 days after the closing of the Offering (the “Lock-Up Period”), (2) during the Lock-Up Period, exercise
or seek to exercise or effectuate in any manner any rights of any nature that the undersigned has or may have hereafter to require the
Company to register under the Act the undersigned’s Disposition of any of the Lock-Up Shares held by the undersigned, (3) otherwise
participate as a selling securityholder in any manner in any registration of Lock-Up Shares effected by the Company under the Act, including
under the Registration Statement, during the Lock-Up Period, or (4) engage in any hedging, collar (whether or not for any consideration)
or other transaction that is designed to or reasonably expected to lead to or result in a Disposition of Lock-Up Shares during the Lock-Up
Period, even if such Lock-Up Shares would be disposed of by someone other than such holder, and such prohibited hedging or other transactions
would include any short sale or any purchase, sale or grant of any right (including any put or call option or reversal or cancellation
thereof) with respect to any Lock-Up Shares or with respect to any security (other than a broad-based market basket or index) that includes,
relates to or derives any significant part of its value from Lock-Up Shares.
Notwithstanding the agreement
not to make any Disposition during the Lock-Up Period, the Underwriters have agreed that the foregoing restrictions shall not apply to:
| (1) | any Disposition or transfer of Lock-Up Shares to a family member, trust, or entity in which more than
fifty percent of the voting interests are owned by the undersigned or the undersigned’s immediate family members (as defined in
General Instruction A.1(a)(5) to Form S-8 under the Act); |
| (3) | any Disposition or transfer of Lock-Up Shares by will, intestate succession or by operation of law pursuant
to a qualified domestic order or in connection with a divorce settlement; |
| (4) | any transfer of Lock-Up Shares solely to cover applicable withholding taxes due upon the vesting of stock-based
awards under the Company’s equity compensation plans; |
| (5) | the conversion or exchange of convertible or exchangeable Company Securities outstanding as of the date
of this letter agreement; |
| (6) | the forfeiture or surrender to the Company of Lock-Up Shares for failure to achieve vesting requirements
associated with such Lock-Up Shares; |
| (7) | Dispositions or forfeiture of Lock-Up Shares of the undersigned or the retention of Lock-Up Shares by
the Company (A) to satisfy tax withholding obligations in connection with the exercise of options to purchase Shares, the vesting of restricted
stock units or performance shares or the settlement of deferred stock units of the Company or (B) in payment of the exercise or purchase
price with respect to the exercise of options to purchase Shares, the vesting of restricted stock units or performance shares or the settlement
of deferred stock units of the Company; |
| (8) | the Disposition or transfer of Lock-Up Shares pursuant to a trading plan established pursuant to Rule
10b5-1 under the Exchange Act (a “10b5-1 Plan”) prior to the date of this letter agreement or the establishment of
a 10b5-1 Plan following the date of this letter agreement provided that such plan does not provide for the transfer of Lock-Up Shares
during the Lock-Up Period; |
| (9) | any Disposition or transfer of Lock-Up Shares pursuant to a bona fide third-party tender offer, merger,
consolidation or other similar transaction that is approved by the board of directors of the Company, made to all holders of the Company
Securities involving a Change of Control (as defined below) (including any support or voting agreement entered into in connection therewith),
provided that in the event that the tender offer, merger, consolidation or other such transaction is not completed, the Lock-up
Shares of the undersigned shall remain subject to the restrictions contained in this letter agreement; or |
| (10) | distributions, transfers or dispositions of Lock-up Shares (i) to another corporation, partnership, limited
liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act of
1933, as amended) of the undersigned, or to any investment fund or other entity controlled or managed by the undersigned or affiliates
of the undersigned (collectively, “Affiliates”), or (ii) as part of a distribution, transfer or disposition without consideration
by the undersigned to its stockholders, current or former partners (general or limited), members, beneficiaries, or other equity holders,
or to the estates of such stockholders, partners, members, beneficiaries or other equity holders; |
provided that in the
case of any transfer, gift or other disposition pursuant to the immediately preceding clauses (1) or (2), except in the case of a bona
fide gift to a charitable organization, the transferee, trust, donee or other recipient agrees to be bound in writing by the terms of
this letter agreement prior to such transfer and no filing by any party (donor, donee, transferor or transferee) under the Exchange Act
shall be required or shall be voluntarily made in connection with such transfer (other than required filings under Section 16(a) and Section
13(d) or 13(g) of the Exchange Act and any filings made after the expiration of the Lock-Up Period). For purposes of clause (9) above,
“Change of Control” shall mean any bona fide third-party tender offer, merger, amalgamation, consolidation or other similar
transaction the result of which would be that any “person” (as defined in Section 13(d)(3) of the Exchange Act),
or group of persons, other than the Company, becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 of the Exchange Act)
of more than 50% of the total voting power of the voting stock of the Company.
Furthermore, the undersigned
may, during the Lock-Up Period, sell shares of Common Stock if and only if (i) such sales are not required to be reported in any public
report or filing under the Exchange Act and (ii) the undersigned does not otherwise voluntarily effect any public report or filing regarding
such sales.
It is understood that, if
(i) the Company notifies the Representative that it does not intend to proceed with the Offering, (ii) the Underwriting Agreement is not
executed on or before February 14, 2024, or (iii) the Underwriting Agreement (other than the provisions thereof that survive termination)
shall terminate or be terminated prior to payment for and delivery of the Shares, the obligations under this letter agreement shall automatically
terminate.
In furtherance of the foregoing,
the Company and its transfer agent and registrar are hereby authorized to decline to make any transfer of Lock-Up Shares if such transfer
would constitute a violation or breach of this letter agreement. This letter agreement shall be binding on the undersigned and the respective
successors, heirs, personal representatives and assigns of the undersigned. Capitalized terms used but not defined herein have the respective
meanings assigned to such terms in the Underwriting Agreement.
|
Very truly yours, |
|
|
|
By: ___________________________________ |
|
Print Name: _____________________________ |
Exhibit 5.1
January 29, 2024
Akoustis Technologies, Inc.
9805 Northcross Center Court, Suite A
Huntersville, NC 28078
Ladies and Gentlemen:
We have acted as your counsel in connection
with the issuance and sale of 23,000,000 shares (the “Shares”) of common stock, par value $0.001 per share
(“Common Stock”), of Akoustis Technologies, Inc., a Delaware corporation (the “Company”),
pursuant to the Underwriting Agreement dated January 25, 2024 (the “Underwriting Agreement”) by and between the
Company and Roth Capital Partners, LLC, as representative of the several underwriters named therein. In accordance with the
Securities Act of 1933, as amended (the “Securities Act”), and the rules and regulations promulgated thereunder,
the Company has prepared and filed with the Securities and Exchange Commission (the “SEC”) on February 4, 2022 a
Registration Statement on Form S-3 (Registration No. 333-252640), declared effective by the SEC on February 15, 2022 (the
“Registration Statement”), including a base prospectus dated February 15, 2022 (the “Base
Prospectus”), a preliminary prospectus supplement dated January 24, 2024 (the “Preliminary Prospectus
Supplement”) and a final prospectus supplement dated January 25, 2024 (the “Final Prospectus
Supplement”).
You have requested our opinion
as to the matters set forth below in connection with the issuance of the Shares. For purposes of rendering that opinion, we have examined
(i) the Registration Statement, (ii) the Base Prospectus, insofar as it pertains to the offering of the Shares, as supplemented by the
Preliminary Prospectus Supplement and Final Prospectus Supplement, (iii) the Underwriting Agreement, (iv) the Company’s Certificate
of Incorporation, as amended through the date hereof, (v) the stock ledger of Common Stock and (vi) the corporate actions of the Company’s
Board of Directors and the Pricing Committee of the Company’s Board of Directors (the “Resolutions”) which provide
for the issuance of the Shares, and we also have made such investigation of law as we have deemed appropriate. We have examined and relied
upon certificates of public officials and, as to certain matters of fact that are material to our opinion, we have also relied on a certificate
of an officer of the Company. Other than our review of the documents listed in (i) through (vi) above, we have not reviewed any other
documents or made any independent investigation for the purpose of rendering this opinion. For the purposes of this opinion letter, we
have made assumptions that are customary in opinion letters of this kind, including the assumptions that each document submitted to us
is accurate and complete, that each such document that is an original is authentic, that each such document that is a copy conforms to
an authentic original, that all signatures on each such document are genuine and that the Company is and shall remain at all times a corporation
duly incorporated, validly existing and in good standing under the laws of the State of Delaware. We have further assumed the legal capacity
of natural persons, and we have assumed that the Underwriting Agreement is enforceable against each of the parties thereto. We have not
verified any of those assumptions.
K&L Gates LLP
300 SOUTH Tryon Street SUITE 1000 Charlotte NC 28202
T +1 704 331 7400 F +1 704
331 7598 klgates.com
Akoustis Technologies, Inc.
January 29, 2024
Page 2
Our opinion set forth below
is limited to the Delaware General Corporation Law (the “DGCL”), including reported judicial decisions interpreting
the DGCL.
Based upon and subject to the
foregoing, it is our opinion that the Shares are duly authorized for issuance by the Company and, when issued and paid for as described
in the Final Prospectus Supplement and pursuant to the Underwriting Agreement and the Resolutions, will be validly issued, fully paid,
and nonassessable.
We hereby consent to the filing of this opinion
letter with the SEC as Exhibit 5.1 to the Company’s Current Report on Form 8-K dated January 29, 2024 and its incorporation by reference
in the Registration Statement. We also consent to the reference to our Firm in the Preliminary Prospectus Supplement and the Final Prospectus
Supplement under the caption “Legal Matters.” In giving this consent, we do not thereby admit that we are experts with respect
to any part of the Registration Statement, Preliminary Prospectus Supplement or Final Prospectus Supplement within the meaning of the
term “expert” as used in Section 11 of the Securities Act or the rules and regulations promulgated thereunder by the SEC,
nor do we admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules
and regulations of the SEC promulgated thereunder.
Very truly yours,
K&L Gates LLP
Exhibit 99.1
Akoustis Announces Pricing of Public Offering
of $10.0 Million of Common Stock
| ● | Board Co-Chair, CEO, CPO, and other Company management
and employees investing $1 million |
Charlotte, NC, January 25, 2024 (GLOBE NEWSWIRE)
- Akoustis Technologies, Inc. (Nasdaq: AKTS) (“Akoustis” or the “Company”), an integrated device manufacturer
(IDM) of patented bulk acoustic wave (BAW) high-band RF filters for mobile and other wireless applications, announced today that it has
priced its underwritten public offering of 20,000,000 shares of its common stock at a public offering price of $0.50 per share.
Akoustis expects the gross proceeds from the offering
to be approximately $10.0 million, before deducting the underwriting discount and other estimated offering expenses payable by Akoustis.
Roth Capital Partners is acting as sole manager
for the offering.
Akoustis intends to use the net proceeds from
the proposed offering to fund operations and the growth of its business, including for capital expenditures, working capital, research
and development, the commercialization of its technology, potential strategic transactions and for other general corporate purposes.
Akoustis has granted the underwriters in the offering
a 30-day option to purchase up to 3,000,000 additional shares of common stock solely to cover over-allotments. Akoustis expects
to close the offering, subject to market and other conditions, on or about January 29, 2024.
A shelf registration statement on Form S-3 (File
No. 333-262540) relating to the shares of common stock to be issued in the offering was previously filed with the Securities and Exchange
Commission (the “SEC”) and is currently effective. A preliminary prospectus supplement and accompanying prospectus describing
the terms of the offering have been filed with the SEC on January 24, 2024, and a final prospectus supplement and accompanying prospectus
with respect to the offering will be filed with the SEC. Copies of the final prospectus supplement and the accompanying prospectus
relating to the securities being offered may be obtained, when available, from Roth Capital Partners, LLC, 888 San Clemente, Suite 400,
Newport Beach, CA 92660, by telephone at (800) 678-9147 or by email at rothecm@roth.com. Electronic copies of the final prospectus
supplement and accompanying prospectus will also be available on the SEC's website at http://www.sec.gov.
This press release does not constitute an offer
to sell, or the solicitation of an offer to buy, the shares of common stock, nor will there be any sale of the shares of common stock
in any state or other jurisdiction in which such offer, solicitation or sale is not permitted.
About Akoustis Technologies, Inc.
Akoustis® (http://www.akoustis.com) is a high-tech
BAW RF filter solutions company that is pioneering next-generation materials science and MEMS wafer manufacturing to address the
market requirements for improved RF filters ‒ targeting higher bandwidth, higher operating frequencies and higher output power compared
to legacy polycrystalline BAW technology. The Company utilizes its proprietary and patented XBAW® manufacturing
process to produce bulk acoustic wave RF filters for mobile and other wireless markets, which facilitate signal acquisition
and accelerate band performance between the antenna and digital back end. Superior performance is driven by the significant advances of
poly-crystal, single-crystal, and other high purity piezoelectric materials and the resonator-filter process technology which enables
optimal trade-offs between critical power, frequency and bandwidth performance specifications.
Akoustis
plans to service the fast growing multi-billion-dollar RF filter market using its integrated device manufacturer (IDM) business model.
The Company owns and operates a 125,000 sq. ft. ISO-9001:2015 registered commercial wafer-manufacturing facility located
in Canandaigua, NY, which includes a class 100 / class 1000 cleanroom facility — tooled
for 150 mm diameter wafers ‒ for the design, development, fabrication and packaging of RF filters, MEMS and other semiconductor
devices. Akoustis Technologies, Inc. is headquartered in the Piedmont technology corridor near Charlotte, North Carolina.
Forward-Looking Statements
This document includes “forward-looking
statements” within the meaning of Section 27A of the Securities Act, and Section 21E of the Securities Exchange Act of 1934, each
as amended, that are intended to be covered by the “safe harbor” created by those sections. These forward-looking statements
include, but are not limited to, statements regarding the public offering of common stock and the intended use of the net proceeds of
such public offering. Forward-looking statements include all statements that are not historical facts and typically are identified by
use of terms such as “may,” “might,” “would,” “will,” “should,” “could,”
“project,” “expect,” “plan,” “strategy,” “anticipate,” “attempt,”
“develop,” “help,” “believe,” “think,” “estimate,” “predict,”
“intend,” “forecast,” “seek,” “potential,” “possible,” “continue,”
“future,” and similar words (including the negative of any of the foregoing), although some forward-looking statements are
expressed differently. Forward-looking statements are neither historical facts nor assurances of future results, performance, events or
circumstances. Instead, these forward-looking statements are based on management’s current beliefs, expectations and assumptions,
and are subject to risks and uncertainties. Factors that could cause actual results to differ materially from those currently anticipated
include, without limitation, risks relating to our inability to obtain adequate financing and sustain our status as a going concern; our
limited operating history; our inability to generate revenues or achieve profitability; the results of our research and development activities;
our inability to achieve acceptance of our products in the market; the failure of our common stock to meet the minimum requirements for
continued listing on the Nasdaq Capital Market; the possibility that the anticipated benefits from business acquisitions will not be realized
in full or at all or may take longer to realize than expected; the possibility that costs or difficulties related to the integration of
acquired businesses’ operations will be greater than expected and the possibility of disruptions to our business during integration
efforts and strain on management time and resources; the impact of a pandemic or epidemic or a natural disaster, including the COVID-19
pandemic, the Russian-Ukrainian and Middle East conflicts and other sources of volatility on our operations, financial condition and the
worldwide economy, including its impact on our ability to access the capital markets; increases in prices for raw materials, labor, and
fuel caused by rising inflation; general economic conditions, including upturns and downturns in the industry; shortages in supplies needed
to manufacture our products, or needed by our customers to manufacture devices incorporating our products; our limited number of patents;
failure to obtain, maintain, and enforce our intellectual property rights; claims of infringement, misappropriation or misuse of third
party intellectual property, including the lawsuit filed by Qorvo, Inc. in October 2021, that, regardless of merit, has resulted in significant
expense; our inability to attract and retain qualified personnel; our reliance on third parties to complete certain processes in connection
with the manufacture of our products; product quality and defects; existing or increased competition; our ability to successfully manufacture,
market and sell products based on our technologies; our ability to meet the required specifications of customers and achieve qualification
of our products for commercial manufacturing in a timely manner; our inability to successfully scale our New York wafer fabrication facility
and related operations while maintaining quality control and assurance and avoiding delays in output; the rate and degree of market acceptance
of any of our products; our ability to achieve design wins from current and future customers; contracting with customers and other parties
with greater bargaining power and agreeing to terms and conditions that may adversely affect our business; risks related to doing business
in foreign countries, including China; any security breaches, cyber-attacks or other disruptions compromising our proprietary information
and exposing us to liability; our failure to innovate or adapt to new or emerging technologies, including in relation to our competitors;
our failure to comply with regulatory requirements; results of any arbitration or litigation that may arise; stock volatility and illiquidity;
dilution caused by any future issuance of common stock or securities that are convertible into or exercisable for common stock; our failure
to implement our business plans or strategies; and our ability to maintain effective internal control over financial reporting. These
and other risks and uncertainties are described in more detail in the Risk Factors and Management’s Discussion and Analysis of Financial
Condition and Results of Operations sections of the Company’s most recent Annual Report on Form 10-K for the year ended June 30,
2023, and in subsequently filed Quarterly Reports on Form 10-Q. Considering these risks, uncertainties and assumptions, the forward-looking
statements regarding future events and circumstances discussed in this document may not occur, and actual results could differ materially
and adversely from those anticipated or implied in the forward-looking statements. You should not rely upon forward-looking statements
as predictions of future events. The forward-looking statements included in this document speak only as of the date hereof and, except
as required by law, we undertake no obligation to update publicly or privately any forward-looking statements, whether written or oral,
for any reason after the date of this document to conform these statements to new information, actual results or to changes in our expectations.
Contact:
Kenneth Boller
Akoustis Technologies
Chief Financial Officer
(704) 274-3598
kboller@akoustis.com
Exhibit 99.2
Akoustis Announces Closing of Public Offering
of Common Stock and Full Exercise of Underwriter’s Option to Purchase Additional Shares
Charlotte, NC, January 29, 2024 (GLOBE
NEWSWIRE) - Akoustis Technologies, Inc. (NASDAQ: AKTS) (“Akoustis” or the “Company”), an
integrated device manufacturer (IDM) of patented bulk acoustic wave (BAW) high-band RF filters for mobile and other wireless
applications, announced today the closing of its previously announced underwritten public offering of 20,000,000 shares of its
common stock at a price to the public of $0.50 per share, including the exercise in full by the underwriter of its option to
purchase 3,000,000 additional shares of Akoustis’ common stock, for a total offering of 23,000,000 shares of the Company’s common stock. Net proceeds to Akoustis, after deducting the underwriting
discount and estimated offering expenses payable by Akoustis, were approximately $10.4 million.
Roth Capital Partners acted as sole manager
for the offering.
Akoustis intends to use the net proceeds from
the offering to fund operations and the growth of its business, including for capital expenditures, working capital, research
and development, the commercialization of its technology, potential strategic transactions and for other general corporate purposes.
The offering was made pursuant to a shelf registration
statement on Form S-3 (No. 333-262540) that was declared effective by the Securities and Exchange Commission (the “SEC”) on
February 15, 2022. A final prospectus supplement and accompanying prospectus with respect to the offering has also been filed with the
SEC on January 29, 2024 and is available on its website at http://www.sec.gov. Copies of the final prospectus supplement and the
accompanying prospectus may be obtained from Roth Capital Partners, LLC, 888 San Clemente, Suite 400, Newport Beach, CA 92660, by telephone
at (800) 678-9147 or by email at rothecm@roth.com.
This press release does not constitute an offer
to sell, or the solicitation of an offer to buy, the shares of common stock, nor will there be any sale of the shares of common stock
in any state or other jurisdiction in which such offer, solicitation or sale is not permitted.
About Akoustis Technologies, Inc.
Akoustis® (http://www.akoustis.com)
is a high-tech BAW RF filter solutions company that is pioneering next-generation materials science and MEMS wafer manufacturing to address
the market requirements for improved RF filters ‒ targeting higher bandwidth, higher operating frequencies and higher output power
compared to legacy polycrystalline BAW technology. The Company utilizes its proprietary and patented XBAW® manufacturing
process to produce bulk acoustic wave RF filters for mobile and other wireless markets, which facilitate signal acquisition and accelerate
band performance between the antenna and digital back end. Superior performance is driven by the significant advances of poly-crystal,
single-crystal, and other high purity piezoelectric materials and the resonator-filter process technology which enables optimal trade-offs
between critical power, frequency and bandwidth performance specifications.
Akoustis plans to service the fast growing multi-billion-dollar RF
filter market using its integrated device manufacturer (IDM) business model. The Company owns and operates a 125,000 sq. ft. ISO-9001:2015
registered commercial wafer-manufacturing facility located in Canandaigua, NY, which includes a class 100 / class 1000 cleanroom facility
— tooled for 150 mm diameter wafers ‒ for the design, development, fabrication and packaging of RF filters, MEMS and other
semiconductor devices. Akoustis Technologies, Inc. is headquartered in the Piedmont technology corridor near Charlotte, North Carolina.
Forward-Looking Statements
This document includes
“forward-looking statements” within the meaning of Section 27A of the Securities Act, and Section 21E of the Securities
Exchange Act of 1934, each as amended, that are intended to be covered by the “safe harbor” created by those sections.
These forward-looking statements include, but are not limited to, statements regarding the intended use of the net proceeds of the
public offering of common stock. Forward-looking statements include all statements that are not historical facts and typically are
identified by use of terms such as “may,” “might,” “would,” “will,”
“should,” “could,” “project,” “expect,” “plan,” “strategy,”
“anticipate,” “attempt,” “develop,” “help,” “believe,”
“think,” “estimate,” “predict,” “intend,” “forecast,”
“seek,” “potential,” “possible,” “continue,” “future,” and similar words
(including the negative of any of the foregoing), although some forward-looking statements are expressed differently.
Forward-looking statements are neither historical facts nor assurances of future results, performance, events or circumstances.
Instead, these forward-looking statements are based on management’s current beliefs, expectations and assumptions, and are
subject to risks and uncertainties. Factors that could cause actual results to differ materially from those currently anticipated
include, without limitation, risks relating to general economic conditions; the fact that the Company’s management has broad
discretion in the use of the proceeds from the sale of common stock in the offering; risks relating to our inability to obtain
adequate financing and sustain our status as a going concern; our limited operating history; our inability to generate revenues or
achieve profitability; the results of our research and development activities; our inability to achieve acceptance of our products
in the market; the failure of our common stock to meet the minimum requirements for continued listing on the Nasdaq Capital Market;
the possibility that the anticipated benefits from business acquisitions will not be realized in full or at all or may take longer
to realize than expected; the possibility that costs or difficulties related to the integration of acquired businesses’
operations will be greater than expected and the possibility of disruptions to our business during integration efforts and strain on
management time and resources; the impact of a pandemic or epidemic or a natural disaster, including the COVID-19 pandemic, the
Russian-Ukrainian and Middle East conflicts and other sources of volatility on our operations, financial condition and the worldwide
economy, including its impact on our ability to access the capital markets; increases in prices for raw materials, labor, and fuel
caused by rising inflation; general economic conditions, including upturns and downturns in the industry; shortages in supplies
needed to manufacture our products, or needed by our customers to manufacture devices incorporating our products; our limited number
of patents; failure to obtain, maintain, and enforce our intellectual property rights; claims of infringement, misappropriation or
misuse of third party intellectual property, including the lawsuit filed by Qorvo, Inc. in October 2021, that, regardless of merit,
has resulted in significant expense; our inability to attract and retain qualified personnel; our reliance on third parties to
complete certain processes in connection with the manufacture of our products; product quality and defects; existing or increased
competition; our ability to successfully manufacture, market and sell products based on our technologies; our ability to meet the
required specifications of customers and achieve qualification of our products for commercial manufacturing in a timely manner; our
inability to successfully scale our New York wafer fabrication facility and related operations while maintaining quality control and
assurance and avoiding delays in output; the rate and degree of market acceptance of any of our products; our ability to achieve
design wins from current and future customers; contracting with customers and other parties with greater bargaining power and
agreeing to terms and conditions that may adversely affect our business; risks related to doing business in foreign countries,
including China; any security breaches, cyber-attacks or other disruptions compromising our proprietary information and exposing us
to liability; our failure to innovate or adapt to new or emerging technologies, including in relation to our competitors; our
failure to comply with regulatory requirements; results of any arbitration or litigation that may arise; stock volatility and
illiquidity; dilution caused by any future issuance of common stock or securities that are convertible into or exercisable for
common stock; our failure to implement our business plans or strategies; and our ability to maintain effective internal control over
financial reporting. These and other risks and uncertainties are described in more detail in the Risk Factors and Management’s
Discussion and Analysis of Financial Condition and Results of Operations sections of the Company’s most recent Annual Report
on Form 10-K for the year ended June 30, 2023, and in subsequently filed Quarterly Reports on Form 10-Q. Considering these risks,
uncertainties and assumptions, the forward-looking statements regarding future events and circumstances discussed in this document
may not occur, and actual results could differ materially and adversely from those anticipated or implied in the forward-looking
statements. You should not rely upon forward-looking statements as predictions of future events. The forward-looking statements
included in this document speak only as of the date hereof and, except as required by law, we undertake no obligation to update
publicly or privately any forward-looking statements, whether written or oral, for any reason after the date of this document to
conform these statements to new information, actual results or to changes in our expectations.
Contact:
COMPANY:
Kenneth Boller
Akoustis Technologies
Chief Financial Officer
(704) 274-3598
kboller@akoustis.com
v3.24.0.1
Cover
|
Jan. 25, 2024 |
Cover [Abstract] |
|
Document Type |
8-K
|
Amendment Flag |
false
|
Document Period End Date |
Jan. 25, 2024
|
Entity File Number |
001-38029
|
Entity Registrant Name |
AKOUSTIS TECHNOLOGIES, INC.
|
Entity Central Index Key |
0001584754
|
Entity Tax Identification Number |
33-1229046
|
Entity Incorporation, State or Country Code |
DE
|
Entity Address, Address Line One |
9805 Northcross Center Court
|
Entity Address, Address Line Two |
Suite A
|
Entity Address, City or Town |
Huntersville
|
Entity Address, State or Province |
NC
|
Entity Address, Postal Zip Code |
28078
|
City Area Code |
704
|
Local Phone Number |
997-5735
|
Written Communications |
false
|
Soliciting Material |
false
|
Pre-commencement Tender Offer |
false
|
Pre-commencement Issuer Tender Offer |
false
|
Title of 12(b) Security |
Common Stock, $0.001 par value
|
Trading Symbol |
AKTS
|
Security Exchange Name |
NASDAQ
|
Entity Emerging Growth Company |
false
|
X |
- DefinitionBoolean flag that is true when the XBRL content amends previously-filed or accepted submission.
+ References
+ Details
Name: |
dei_AmendmentFlag |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionFor the EDGAR submission types of Form 8-K: the date of the report, the date of the earliest event reported; for the EDGAR submission types of Form N-1A: the filing date; for all other submission types: the end of the reporting or transition period. The format of the date is YYYY-MM-DD.
+ References
+ Details
Name: |
dei_DocumentPeriodEndDate |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:dateItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionThe type of document being provided (such as 10-K, 10-Q, 485BPOS, etc). The document type is limited to the same value as the supporting SEC submission type, or the word 'Other'.
+ References
+ Details
Name: |
dei_DocumentType |
Namespace Prefix: |
dei_ |
Data Type: |
dei:submissionTypeItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionAddress Line 1 such as Attn, Building Name, Street Name
+ References
+ Details
Name: |
dei_EntityAddressAddressLine1 |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionAddress Line 2 such as Street or Suite number
+ References
+ Details
Name: |
dei_EntityAddressAddressLine2 |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- Definition
+ References
+ Details
Name: |
dei_EntityAddressCityOrTown |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionCode for the postal or zip code
+ References
+ Details
Name: |
dei_EntityAddressPostalZipCode |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionName of the state or province.
+ References
+ Details
Name: |
dei_EntityAddressStateOrProvince |
Namespace Prefix: |
dei_ |
Data Type: |
dei:stateOrProvinceItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionA unique 10-digit SEC-issued value to identify entities that have filed disclosures with the SEC. It is commonly abbreviated as CIK.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b-2
+ Details
Name: |
dei_EntityCentralIndexKey |
Namespace Prefix: |
dei_ |
Data Type: |
dei:centralIndexKeyItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionIndicate if registrant meets the emerging growth company criteria.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b-2
+ Details
Name: |
dei_EntityEmergingGrowthCompany |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionCommission file number. The field allows up to 17 characters. The prefix may contain 1-3 digits, the sequence number may contain 1-8 digits, the optional suffix may contain 1-4 characters, and the fields are separated with a hyphen.
+ References
+ Details
Name: |
dei_EntityFileNumber |
Namespace Prefix: |
dei_ |
Data Type: |
dei:fileNumberItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionTwo-character EDGAR code representing the state or country of incorporation.
+ References
+ Details
Name: |
dei_EntityIncorporationStateCountryCode |
Namespace Prefix: |
dei_ |
Data Type: |
dei:edgarStateCountryItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionThe exact name of the entity filing the report as specified in its charter, which is required by forms filed with the SEC.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b-2
+ Details
Name: |
dei_EntityRegistrantName |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionThe Tax Identification Number (TIN), also known as an Employer Identification Number (EIN), is a unique 9-digit value assigned by the IRS.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b-2
+ Details
Name: |
dei_EntityTaxIdentificationNumber |
Namespace Prefix: |
dei_ |
Data Type: |
dei:employerIdItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionLocal phone number for entity.
+ References
+ Details
Name: |
dei_LocalPhoneNumber |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 13e -Subsection 4c
+ Details
Name: |
dei_PreCommencementIssuerTenderOffer |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 14d -Subsection 2b
+ Details
Name: |
dei_PreCommencementTenderOffer |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionTitle of a 12(b) registered security.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b
+ Details
Name: |
dei_Security12bTitle |
Namespace Prefix: |
dei_ |
Data Type: |
dei:securityTitleItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionName of the Exchange on which a security is registered.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection d1-1
+ Details
Name: |
dei_SecurityExchangeName |
Namespace Prefix: |
dei_ |
Data Type: |
dei:edgarExchangeCodeItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as soliciting material pursuant to Rule 14a-12 under the Exchange Act.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Section 14a -Number 240 -Subsection 12
+ Details
Name: |
dei_SolicitingMaterial |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionTrading symbol of an instrument as listed on an exchange.
+ References
+ Details
Name: |
dei_TradingSymbol |
Namespace Prefix: |
dei_ |
Data Type: |
dei:tradingSymbolItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Securities Act -Number 230 -Section 425
+ Details
Name: |
dei_WrittenCommunications |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
Akoustis Technologies (NASDAQ:AKTS)
Gráfica de Acción Histórica
De Sep 2024 a Oct 2024
Akoustis Technologies (NASDAQ:AKTS)
Gráfica de Acción Histórica
De Oct 2023 a Oct 2024