Registration
No. 333-
As
filed with the Securities Exchange Commission on June 30, 2023
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
STRYVE
FOODS, INC.
(Exact
name of registrant as specified in its charter)
Delaware |
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87-1760117 |
(State
or other jurisdiction
of
incorporation or organization) |
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(I.R.S.
Employer
Identification
No.) |
Post
Office Box 864
Frisco,
TX 75034
Telephone:
(972) 987-5130
(Address,
including zip code, and telephone number, of registrant’s principal executive offices)
Norma
Garcia
Post
Office Box 864
Frisco,
TX 75034
Telephone:
(972) 987-5130
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies
to:
John
J. Wolfel
Chris
Babcock
Foley
& Lardner LLP
One
Independent Drive, Suite 1300
Jacksonville,
Florida 32202
(904)
359-2000
Approximate
date of proposed sale to the public: From time to time after this Registration Statement becomes effective.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check
the following box. ☐
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following
box. ☒
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration number of the earlier effective registration statement for the same offering.
☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective
upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large
accelerated filer ☐ |
Accelerated
filer ☐ |
Non-accelerated
filer ☒ |
Smaller
reporting company ☒ |
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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 to Section 7(a)(2)(B) of the Securities Act ☐
The
registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the
registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date
as the Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY
NOTE
This
Registration Statement contains two prospectuses:
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A
base prospectus which covers the offering, issuance and sale by us of up to $20 million in the aggregate of the securities
identified below from time to time in one or more offerings; and |
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A
sales agreement prospectus covering the offering, issuance and sale by us of up to a maximum
aggregate offering price of $5.7 million of our Class A common stock that may be
issued and sold under a sales agreement with Craig-Hallum Capital Group LLC.
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The
base prospectus immediately follows this explanatory note. The specific terms of any securities to be offered pursuant to the base prospectus
will be specified in a prospectus supplement to the base prospectus. The sales agreement prospectus immediately follows the base prospectus.
The $5.7 million of Class A common stock that may be offered, issued and sold under the sales agreement prospectus is included
in the $20 million of securities that may be offered, issued and sold by us under the base prospectus, and if no shares are sold
under the sales agreement, the full $20 million of securities may be sold in other offerings pursuant to the base prospectus and
a corresponding prospectus supplement.
The
information in this preliminary prospectus is not complete and may be changed. We may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell these securities
and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
Subject
to completion, dated June 30, 2023
PROSPECTUS
STRYVE
FOODS, INC.
CLASS
A COMMON STOCK
PREFERRED
STOCK
WARRANTS
SUBSCRIPTION
RIGHTS
SECURITIES
PURCHASE CONTRACTS
UNITS
We
may offer and sell from time to time up to $20 million of any combination of the securities described in this prospectus, from
time to time, in one or more offerings, in amounts, at prices and on terms determined at the times of offerings.
This
prospectus describes the general manner in which our securities may be offered using this prospectus. We will provide specific terms
of the securities, including the offering prices, in one or more supplements to this prospectus. The supplements may also add, update
or change information contained in this prospectus. You should read this prospectus and the prospectus supplement relating to the specific
issue of securities carefully before you invest.
We
may offer the securities for sale directly to the purchasers or through one or more underwriters, dealers and agents to be designated
at a future date. The supplements to this prospectus will provide the specific terms of the plan of distribution.
Our
shares of Class A common stock and Warrants are listed on Nasdaq under the symbols “SNAX” and “SNAXW,” respectively.
On June 23, 2023, the closing sale price per share of our Class A common stock and Warrants was $0.5506 and $0.0499, respectively.
The
aggregate market value of our outstanding Class A common stock held by non-affiliates pursuant to General Instruction I.B.6 of Form S-3
was approximately $17.1 million, which was calculated based on 26,168,903 shares of Class A common stock outstanding as
of June 23, 2023, of which 5,201,118 shares were held by affiliates, and a price of $0.8160 per share, which was the closing price
of our common stock on Nasdaq on May 26, 2023. We have not offered any securities pursuant to General Instruction I.B.6 of Form S-3 during
the prior 12 calendar month period that ends on, and includes, the date of this prospectus.
We
are an “emerging growth company,” as that term is used in the Jumpstart Our Business Startups Act of 2012, and are subject
to reduced public company reporting requirements.
Investing
in our securities is highly speculative and involves a significant degree of risk. See “Risk Factors” beginning on page 2
of this prospectus for a discussion of information that should be considered before making a decision to purchase our securities.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed
upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense.
The
date of this prospectus is
, 2023.
TABLE
OF CONTENTS
PROSPECTUS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission, or the SEC, using
a “shelf” registration process. Under this shelf registration process, we may, from time to time, sell the securities described
in this prospectus, in one or more offerings, up to the maximum aggregate dollar amount $20 million. This prospectus provides
you with a general description of the securities that we may offer. Each time we offer securities, we will provide a prospectus supplement
and/or other offering material that will contain specific information about the terms of that offering. The prospectus supplement and/or
other offering material may also add, update or change information contained in this prospectus. You should read this prospectus and
the applicable prospectus supplement and any other offering material together with the additional information described under the heading
“Where You Can Find Additional Information.”
You
should rely only on the information contained or incorporated by reference in this prospectus and in any prospectus supplement or other
offering material. We have not authorized any other person to provide you with different information. If anyone provides you with different
or inconsistent information, you should not rely on it. We are not making offers to sell the securities in any jurisdiction in which
an offer is not authorized or in which the person making that offer is not qualified to do so or to anyone to whom it is unlawful to
make an offer. You should not assume that the information contained in this prospectus or any prospectus supplement or any other offering
material, or the information we previously filed with the SEC that we incorporate by reference in this prospectus or any prospectus supplement,
is accurate as of any date other than its respective date. Our business, financial condition, results of operations and prospects may
have changed since those dates.
All
references in this prospectus to “Stryve,” the “Company,” “we,” “us,” “our,”
or similar references refer to Stryve Foods, Inc. and our consolidated subsidiaries, except where the context otherwise requires or as
otherwise indicated.
STRYVE
FOODS, INC.
Stryve
is an emerging healthy snacking company which manufactures, markets and sells highly differentiated healthy snacking products that Stryve
believes can disrupt traditional snacking categories. Stryve’s mission is “to help Americans snack better and live happier,
better lives.” Stryve offers convenient snacks that are lower in sugar and carbohydrates and higher in protein than other snacks.
Stryve offers all-natural, delicious snacks which it believes are nutritious and offer consumers a convenient healthy snacking option
for their on-the-go lives.
Stryve’s
current product portfolio consists primarily of air-dried meat snack products marketed under the Stryve®, Kalahari®, Braaitime®,
and Vacadillos® brand names. Unlike beef jerky, Stryve’s all-natural air-dried meat snack products are made of beef and spices,
are never cooked, generally contain zero grams of sugar, and are free of monosodium glutamate (MSG), gluten, nitrates, nitrites, and
preservatives. As a result, Stryve’s products are Keto and Paleo diet friendly. Further, based on protein density and sugar content,
Stryve believes that its air-dried meat snack products are some of the healthiest shelf-stable snacks available today.
Stryve
distributes its products in major retail channels, primarily in North America, including grocery, club stores and other retail outlets,
as well as directly to consumers through its owned e-commerce websites as well as direct to consumer through the Amazon platform.
Stryve
believes increased consumer focus in the U.S. on health and wellness will continue to drive growth of the nutritional snacking category
and increase demand for Stryve’s products. Stryve has made substantial investments since its inception in product development,
establishing its manufacturing facility, and building its marketing, sales and operations infrastructure to grow its business. Stryve
intends to continue to invest in product innovation and acquisition, improving its supply chain, increasing its manufacturing capacity,
and expanding its marketing and sales initiatives to continue its growth.
Additional
information about us can be found in our most recent annual report on Form 10-K incorporated by reference herein together with any material
changes thereto contained in subsequently filed quarterly reports on Form 10-Q.
Andina
Acquisition Corp. III (Andina) was a blank check company incorporated as a Cayman Islands exempted company on July 29, 2016. Stryve Foods,
LLC was a Texas limited liability company formed on January 13, 2017. On July 20, 2021, we completed the Business Combination, under
which Andina was domesticated as a corporation in the State of Delaware, renamed “Stryve Foods, Inc.” and was organized as
an “Up-C” structure in which substantially all of the assets of the combined company are held by Andina Holdings, LLC (Holdings),
and our only assets are our equity interests in Holdings. As the managing member of Holdings, we have full, exclusive and complete discretion
to manage and control the business of Holdings and to take all action we deem necessary, appropriate, advisable, incidental, or convenient
to accomplish the purposes of Holdings. As of the open of trading on July 21, 2021, our Class A common stock and Warrants, formerly those
of Andina, began trading on Nasdaq as “SNAX” and “SNAXW,” respectively.
Our
principal executive offices are located at P.O. Box 864, Frisco, Texas 75034, and our telephone number is (972) 987-5130. Our website
address is www.stryve.com. Information contained on our website is not a part of this prospectus, and the inclusion of our website address
in this prospectus is an inactive textual reference only.
RISK
FACTORS
Investing
in our securities involves significant risks. Before making an investment decision, you should carefully consider the risks, uncertainties
and other factors described in our most recent annual report on Form 10-K, as supplemented and updated by subsequent quarterly reports
on Form 10-Q and current reports on Form 8-K that we have filed or will file with the SEC, and in documents which are incorporated by
reference into this prospectus, as well as the risk factors and other information contained in or incorporated by reference into the
applicable prospectus supplement.
If
any of these risks were to occur, our business, affairs, prospects, assets, financial condition, results of operations and cash flow
could be materially and adversely affected. If this occurs, the market or trading price of our securities could decline, and you could
lose all or part of your investment. In addition, please read “Special Note Regarding Forward-Looking Statements”
in this prospectus, where we describe additional uncertainties associated with our business and the forward-looking statements included
or incorporated by reference into this prospectus.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus and the documents incorporated by reference in this prospectus contain forward-looking
statements within the meaning of Section 27A of the Securities Act of 1933, or the Securities Act, and Section 21E of the Securities
Exchange Act of 1934, or the Exchange Act. Forward-looking statements provide our current expectations or forecasts of future events.
Forward-looking statements include statements about our expectations, beliefs, plans, objectives, intentions, assumptions and other statements
that are not historical facts. In addition, any statements that refer to projections, forecasts or other characterizations of future
events or circumstances, including any underlying assumptions, are forward-looking statements. The words “anticipates,” “believe,”
“continue,” “could,” “estimate,” “expect,” “intends,” “may,”
“might,” “plan,” “possible,” “potential,” “predicts,” “project,”
“should,” “would” and similar expressions may identify forward-looking statements, but the absence of these words
does not mean that a statement is not forward-looking. Examples of forward-looking statements in this prospectus and
the documents incorporated by reference into this prospectus include, but are not limited to, statements regarding disclosure
concerning our operations, cash flows, financial position and dividend policy. These forward-looking statements include, but are not
limited to:
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our
market opportunity and the potential growth of that market; |
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the
impact of inflation and cost increases on our business; |
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our
strategy, expected outcomes and growth prospects; |
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trends
in our operations, industry and markets; |
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our
future profitability, indebtedness, liquidity, access to capital and financial condition, and our ability to continue as a going
concern; and |
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our
integration of companies that we have acquired or may acquire into our operations |
Forward-looking
statements are based on management’s current expectations, estimates, forecasts and projections about our business and the industry
in which we operate, and management’s beliefs and assumptions are not guarantees of future performance or development and involve
known and unknown risks, uncertainties and other factors that are in some cases beyond our control, including those described in the
section titled “Risk Factors” and elsewhere in this prospectus and the documents incorporated by reference into this
prospectus.
You
should not rely upon forward-looking statements as predictions of future events. Although we believe that the expectations reflected
in the forward-looking statements are reasonable, we cannot guarantee that the future results, levels of activity, performance or events
and circumstances reflected in the forward-looking statements will be achieved or occur. We undertake no obligation to update publicly
any forward-looking statements for any reason after the date of this prospectus to conform these statements to actual results or to changes
in our expectations, except as required by law.
You
should read this prospectus and the documents we have filed with the SEC that are incorporated
by reference in this prospectus with the understanding that our actual future results, levels of activity, performance and events
and circumstances may be materially different from what we expect.
USE
OF PROCEEDS
We
intend to use the net proceeds from the sale of the securities as set forth in the applicable prospectus supplement. Pending such use,
we may temporarily invest the net proceeds in short-term investments.
DILUTION
We
will set forth in a prospectus supplement the following information regarding any material dilution of the equity interests of investors
purchasing securities in an offering under this prospectus:
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the
net tangible book value per share of our equity securities before and after the offering; |
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the
amount of the increase in such net tangible book value per share attributable to the cash payments made by purchasers in the offering;
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the
amount of the immediate dilution from the public offering price which will be absorbed by such purchasers. |
SECURITIES
TO BE OFFERED
We
may offer, from time to time and in one or more offerings, shares of Class A common stock, shares of preferred stock, warrants, subscription
rights, securities purchase contracts and units. Set forth herein and below is a general description of the securities that we may offer
hereunder. We will set forth in the applicable prospectus supplement a specific description of the securities that may be offered under
this prospectus. The terms of the offering of securities, the initial offering price and the net proceeds will be contained in the prospectus
supplement and/or other offering material relating to such offering.
DESCRIPTION
OF CAPITAL STOCK
The
following is a description of our capital stock and certain provisions of our amended and restated articles of incorporation (our “Amended
and Restated Certificate of Incorporation”), amended and restated bylaws and certain provisions of applicable law. The following
is only a summary and is qualified by applicable law and by the provisions of our Amended and Restated Certificate of Incorporation and
bylaws, copies of which are included as exhibits to the registration statement of which this prospectus forms a part. We are incorporated
in the State of Delaware. The rights of our stockholders are generally covered by Delaware law and Amended and Restated Certificate of
Incorporation and bylaws. The terms of our capital stock are therefore subject to Delaware law.
Authorized
and Outstanding Stock
The
Amended and Restated Certificate of Incorporation authorizes the issuance of 610,000,000 shares, of which 400,000,000 shares are shares
of Class A common stock, par value $0.0001 per share, 200,000,000 shares are shares of Class V common stock, par value $0.0001 per share,
and 10,000,000 shares are shares of preferred stock, par value $0.0001 per share.
As
of June 23, 2023, the Company had issued and outstanding:
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26,168,903
shares of Class A common stock; |
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6,145,995
shares of Class V Common Stock; |
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10,997,500
Warrants to purchase an equal number of shares of Class A common stock at an exercise price of $11.50 per share; |
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10,294,118
warrants to purchase an equal number of shares of Class A common stock at an exercise price of $3.60 per share; |
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7,964,550
warrants to purchase an equal number of shares of Class A common stock at an exercise price of $0.5134 per share; and |
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no
outstanding shares of preferred stock. |
Common
Stock
Voting.
Pursuant to Amended and Restated Certificate of Incorporation, holders of Class A common stock and Class V common stock vote together
as a single class on all matters submitted to the stockholders for their vote or approval, except as required by applicable law. Holders
of Class A common stock and Class V common stock are entitled to one vote per share on all matters submitted to the stockholders for
their vote or approval. Directors are elected by a plurality of the votes present in person or represented by proxy and entitled to vote.
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Dividends.
The holders of Class A common stock are entitled to receive dividends, as and if declared by the Company’s Board out of legally
available funds. The holders of Class V common stock will not have any right to receive dividends. |
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Liquidation
Rights. Upon the Company’s liquidation or dissolution, the holders of all classes of common stock are entitled to their
respective par value, and the holders of Class A common stock will then be entitled to share ratably in those of the Company’s
assets that are legally available for distribution to stockholders after payment of liabilities and subject to the prior rights of
any holders of preferred stock then outstanding. Other than their par value, the holders of Class V common stock will not have any
right to receive a distribution upon a liquidation or dissolution of the Company. |
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Conversion,
Transferability and Exchange. The holders of Class V shares may from time to time tender shares of Class V common stock (together
with an equal number of Class B Common Units) for an equal number of shares of Class A common stock. The Company may not issue Class
V common stock such that after the issuance the holder of such stock does not hold an identical number of Class B Common Units. The
Class A common stock has no conversion or exchange rights. |
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Other
Provisions. None of the Class A common stock or Class V common stock has any pre-emptive or other subscription rights. |
Preferred
Stock
The
Company is authorized to issue up to 10,000,000 shares will be shares of preferred stock, par value $0.0001 per share. The Company’s
Board is authorized, subject to limitations prescribed by Delaware law and the Amended and Restated Certificate of Incorporation, to
determine the terms and conditions of the preferred stock, including whether the shares of preferred stock will be issued in one or more
series, the number of shares to be included in each series and the powers (including the voting power), designations, preferences and
rights of the shares. The Company’s Board also is authorized to designate any qualifications, limitations or restrictions on the
shares without any further vote or action by the stockholders. The issuance of preferred stock may have the effect of delaying, deferring
or preventing a change in control of the Company and may adversely affect the voting and other rights of the holders of Class A common
stock and Class V common stock, which could have a negative impact on the market price of the Class A common stock. The Company has no
current plan to issue any shares of preferred stock. As of the date of this prospectus, there are no shares of preferred stock outstanding.
Stock
Options and Restricted Stock
As
of June 23, 2023 we had no outstanding options and 1,256,998 shares of unvested restricted stock or restricted stock units. As
of June 23, 2023 an additional 5,157,508 shares of Class A common stock were available for future award grants under our omnibus
incentive plan.
Warrants
Public
Warrants. We have outstanding 10,997,500 Warrants outstanding that represent the right to purchase an equal number of shares of the
Company’s Class A common stock. Each redeemable Warrant entitles the registered holder to purchase one share of Class A common
stock at a price of $11.50, subject to adjustment as discussed below, at any time commencing on or after July 20, 2021. However, except
as set forth below, no Warrants will be exercisable for cash unless we have an effective and current registration statement covering
the shares of Class A common stock issuable upon exercise of the Warrants and a current prospectus relating to such shares. Notwithstanding
the foregoing, if a registration statement covering the shares of Class A common stock issuable upon exercise of the Warrants is not
effective, warrant holders may, until such time as there is an effective registration statement and during any period when we shall have
failed to maintain an effective registration statement, exercise Warrants on a cashless basis pursuant to the exemption from registration
provided by Section 3(a)(9) of the Securities Act provided that such exemption is available. If an exemption from registration is not
available, holders will not be able to exercise their Warrants on a cashless basis. The Warrants will expire on July 20, 2026 at 5:00
p.m., New York City time.
We
may call the Warrants for redemption (excluding the Private Warrants), in whole and not in part, at a price of $.01 per Warrant:
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at
any time while the Warrants are exercisable, |
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upon
not less than 30 days’ prior written notice of redemption to each Warrant holder, |
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if,
and only if, the reported last sale price of shares of Class A common stock equals or exceeds $18.00 per share, for any 20 trading
days within a 30 trading day period ending on the third business day prior to the notice of redemption to warrant holders, and |
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if,
and only if, there is a current registration statement in effect with respect to shares of Class A common stock underlying such Warrants
at the time of redemption and for the entire 30-day trading period referred to above and continuing each day thereafter until the
date of redemption. |
The
right to exercise will be forfeited unless the Warrants are exercised prior to the date specified in the notice of redemption. On and
after the redemption date, a record holder of a Warrant will have no further rights except to receive the redemption price for such holder’s
Warrant upon surrender of such Warrant.
The
redemption criteria for our Warrants have been established at a price which is intended to provide Warrant holders a reasonable premium
to the initial exercise price and provide a sufficient differential between the then-prevailing share price and the Warrant exercise
price so that if the share price declines as a result of our redemption call, the redemption will not cause the share price to drop below
the exercise price of the Warrants.
If
we call the Warrants for redemption as described above, management will have the option to require all holders that wish to exercise
Warrants to do so on a “cashless basis.” In such event, each holder would pay the exercise price by surrendering the Warrants
for that number of shares of Class A common stock equal to the quotient obtained by dividing (x) the product of the number of shares
of Class A common stock underlying the Warrants, multiplied by the difference between the exercise price of the Warrants and the “fair
market value” (defined below) by (y) the fair market value. For this purpose, “fair market value” shall mean the volume
weighted average price of shares of Class A common stock for the 20 trading days ending on the third trading day prior to the date on
which the notice of redemption is sent to the holders of Warrants. Whether we will exercise our option to require all holders to exercise
their Warrants on a “cashless basis” will depend on a variety of factors including the price of shares of Class A common
stock at the time the Warrants are called for redemption, our cash needs at such time and concerns regarding dilutive share issuances.
The
Warrants were issued in registered form under a warrant agreement between Continental Stock Transfer & Trust Company, as Warrant
Agent, and us. The Warrant agreement provides that the terms of the Warrants may be amended without the consent of any holder to cure
any ambiguity or correct any defective provision, but requires the approval, by written consent or vote, of the holders of a majority
of the then outstanding Warrants in order to make any change that adversely affects the interests of the registered holders.
The
exercise price and number of shares of Class A common stock issuable on exercise of the Warrants may be adjusted in certain circumstances
including in the event of a share dividend, extraordinary dividend or our recapitalization, reorganization, merger or consolidation.
The
Warrants may be exercised upon surrender of the Warrant certificate on or prior to the expiration date at the offices of the Warrant
Agent, with the exercise form on the reverse side of the Warrant certificate completed and executed as indicated, accompanied by full
payment of the exercise price, by certified or official bank check payable to us, for the number of Warrants being exercised. The
Warrant
holders do not have the rights or privileges of holders of shares of Class A common stock and any voting rights until they exercise their
Warrants and receive shares of Class A common stock. After the issuance of shares of Class A common stock upon exercise of the Warrants,
each holder will be entitled to one vote for each share held of record on all matters to be voted on by shareholders.
Except
as described above, no Warrants will be exercisable and we will not be obligated to issue shares of Class A common stock unless at the
time a holder seeks to exercise such Warrant, a prospectus relating to shares of Class A common stock issuable upon exercise of the Warrants
is current and shares of Class A common stock have been registered or qualified or deemed to be exempt under the securities laws of the
state of residence of the holder of the Warrants. Under the terms of the Warrant agreement, we have agreed to use its best efforts to
meet these conditions and to maintain a current prospectus relating to shares of Class A common stock issuable upon exercise of the Warrants
until the expiration of the Warrants. However, we cannot assure you that we will be able to do so and, if we do not maintain a current
prospectus relating to shares of Class A common stock issuable upon exercise of the Warrants, holders will be unable to exercise their
Warrants and we will not be required to settle any such Warrant exercise. If the prospectus relating to shares of Class A common stock
issuable upon the exercise of the Warrants is not current or if shares of Class A common stock are not qualified or exempt from qualification
in the jurisdictions in which the holders of the Warrants reside, we will not be required to net cash settle or cash settle the Warrant
exercise, the Warrants may have no value, the market for the Warrants may be limited and the Warrants may expire worthless.
Warrant
holders may elect to be subject to a restriction on the exercise of their Warrants such that an electing Warrant holder (and his, her
or its affiliates) would not be able to exercise their Warrants to the extent that, after giving effect to such exercise, such holder
(and his, her or its affiliates) would beneficially own in excess of 9.8% of shares of Class A common stock outstanding. Notwithstanding
the foregoing, any person who acquires a Warrant with the purpose or effect of changing or influencing the control of us, or in connection
with or as a participant in any transaction having such purpose or effect, immediately upon such acquisition will be deemed to be the
beneficial owner of the underlying Ordinary Shares and not be able to take advantage of this provision.
No
fractional shares will be issued upon exercise of the Warrants. If, upon exercise of the Warrants, a holder would be entitled to receive
a fractional interest in a share (as a result of a subsequent share dividend payable in shares of Class A common stock, or by a split
up of shares of Class A common stock or other similar event), we will, upon exercise, round up or down to the nearest whole number the
number of shares of Class A common stock to be issued to the Warrant holder.
Private
Warrants. We have agreed that so long as the Private Warrants are still held by our initial shareholders or their affiliates, we
will not redeem such Warrants and will allow the holders to exercise such Warrants on a cashless basis (even if a registration statement
covering shares of Class A common stock issuable upon exercise of such Warrants is not effective). However, once any of the Private Warrants
are transferred from the initial purchasers or their affiliates, these arrangements will no longer apply. Additionally, Cowen has agreed
that it will not be permitted to exercise any Warrants underlying the purchase option issued to it and/or its designees upon consummation
of the IPO after the five year anniversary of the effective date of the registration statement for our IPO. Furthermore, because the
Private Warrants were issued in a private transaction, the holders and their transferees will be allowed to exercise such Warrants for
cash even if a registration statement covering shares of Class A common stock issuable upon exercise of such Warrants is not effective
and receive unregistered shares of Class A common stock. As of June 1, 2023, 197,500 of the total 10,997,500 Warrants outstanding were
Private Warrants.
January
2022 Private Placement Warrants. On January 6, 2022, we entered into a Securities Purchase Agreement (the “January Purchase
Agreement”) with select accredited investors (the “2022 Investors”), relating to the issuance and sale of 2,496,934
shares of Class A common stock and, in lieu of Class A common stock, pre-funded warrants to purchase 7,797,184 shares of Class A common
stock, and accompanying warrants to purchase up to 10,294,118 shares of Class A common stock (the “January 2022 Offering”).
The January 2022 Offering closed on January 11, 2022. The Class A common stock and warrants were sold at a combined purchase price of
$3.40 per share (less $0.0001 per share for pre-funded warrants). We received gross proceeds from the January 2022 Offering of approximately
$35 million before deducting estimated offering expenses.
Each
warrant has an exercise price per share of Class A common stock equal to $3.60 and will expire five years from the date of issuance and
may be exercised on a cashless basis if a registration statement registering the shares issuable upon exercise is not effective. The
warrants are immediately exercisable, provided that the holder will be prohibited, subject to certain exceptions, from exercising the
warrants for shares of Class A common stock to the extent that immediately prior to or after giving effect to such exercise, the holder,
together with its affiliates and other attribution parties, would own more than 4.99% or 9.99%, as applicable, of the total number of
shares of Class A common stock then issued and outstanding, which percentage may be changed at the holders’ election to a higher
or lower percentage not in excess of 9.99% upon 61 days’ notice to us. The pre-funded warrants issued in the January 2022 Offering
were exercised in full on a cashless basis and all warrants issued remain outstanding.
Lender
Warrants. On April 19, 2023, we issued an aggregate of $4,089,000 in principal amount of secured promissory notes (the “Notes”)
to select accredited investors (the “Lenders”). The aggregate principal amount of the Notes is inclusive of $1,195,000 from
related parties (the “Related Party Notes”). The Notes accrue interest annually at a rate of 12% and will mature upon the earlier
of (i) December 31, 2023, or (ii) the closing of the next sale (or series of related sales) by us of equity securities (other than pursuant
to warrants described below), following the date of the Notes, from which we receive gross proceeds of not less than $3,000,000. The
Notes are secured by a security interest on substantially all the assets of the Company that is subordinate to the security interests
of the Company’s existing first and second lien lenders.
Each
Lender that purchased Notes received a warrant (the “Warrants”) to purchase one share of our Class A common stock for each
$0.5134 of principal amount of the Notes, for an aggregate of 7,964,550 Warrants. The aggregate amount of the Warrants is inclusive of
2,327,620 associated with the Related Party Notes. Each Warrant is exercisable immediately, has an exercise price per share of Class
A common stock equal to $0.5134 and will expire three years and three months from the date of issuance and may be exercised on a cashless
basis if a registration statement registering the resale of the shares issuable upon exercise is not effective. The warrant holder will
be prohibited, subject to certain exceptions, from exercising the Warrants for shares of the Company’s Class A common stock to
the extent that immediately prior to or after giving effect to such exercise, the warrant holder, together with its affiliates and other
attribution parties, would own more than 4.99% or 9.99%, as applicable, of the total number of shares of Class A common stock then issued
and outstanding, which percentage may be changed at the warrant holders’ election to a higher or lower percentage not in excess
of 9.99% upon 61 days’ notice.
Exclusive
Forum
The
Amended and Restated Certificate of Incorporation provides that, to the fullest extent permitted by law, and unless the Company consents
in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware will be the sole and exclusive forum
for (i) any derivative action or proceeding brought on behalf of the Company, (ii) any action asserting a claim of breach of a fiduciary
duty owed by any director, officer or other employee of the Company to the Company or the Company’s stockholders, (iii) any action
asserting a claim against the Company, its directors, officers or employees arising pursuant to any provision of the Delaware Corporation
Law or the Amended and Restated Certificate of Incorporation or the bylaws, or (iv) any action asserting a claim against the Company,
its directors, officers or employees governed by the internal affairs doctrine, in each such case subject to such Court of Chancery having
personal jurisdiction over the indispensable parties named as defendants therein.
This
exclusive forum provision will not apply to claims under the Exchange Act, but will apply to other state and federal law claims including
actions arising under the Securities Act. Section 22 of the Securities Act, however, creates concurrent jurisdiction for federal and
state courts over all suits brought to enforce any duty or liability created by the Securities Act or the rules and regulations thereunder.
Accordingly, there is uncertainty as to whether a court would enforce such a forum selection provision as written in connection with
claims arising under the Securities Act.
Anti-Takeover
Effects of Provisions of the Charter and Bylaws
The
provisions of the Amended and Restated Certificate of Incorporation and bylaws and of the Delaware General Corporation Law (“DGCL”)
summarized below may have an anti-takeover effect and may delay, defer or prevent a tender offer or takeover attempt that you might consider
in your best interest, including an attempt that might result in your receipt of a premium over the market price for your shares of Class
A common stock.
The
Amended and Restated Certificate of Incorporation and bylaws contain certain provisions that are intended to enhance the likelihood of
continuity and stability in the composition of the Board and that may have the effect of delaying, deferring or preventing a future takeover
or change in control of the Company unless such takeover or change in control is approved by the Board of Directors.
These
provisions include:
Action
by Written Consent; Special Meetings of Stockholders. The Amended and Restated Certificate of Incorporation provides that stockholder
action can be taken only at an annual or special meeting of stockholders and cannot be taken by written consent in lieu of a meeting.
The Amended and Restated Certificate of Incorporation and bylaws also provide that, subject to any special rights of the holders of any
series of preferred stock and except as otherwise required by applicable law, special meetings of the stockholders can only be called
by the Chairman of the Board, the Company’s Chief Executive Officer or by the Company’s Board. Except as described above,
stockholders are not permitted to call a special meeting or to require the Company’s Board to call a special meeting.
Advance
Notice Procedures. The Bylaws establish an advance notice procedure for stockholder proposals to be brought before an annual meeting
of stockholders, and for stockholder nominations of persons for election to the Board to be brought before an annual or special meeting
of stockholders. Stockholders at an annual meeting will only be able to consider proposals or nominations specified in the notice of
meeting or brought before the meeting by or at the direction of the Board of directors or by a stockholder who was a stockholder of record
on the record date for the meeting, who is entitled to vote at the meeting and who has given the Company’s Secretary timely written
notice, in proper form, of the stockholder’s intention to bring that business or nomination before the meeting. Although the Bylaws
will not give the Company’s Board the power to approve or disapprove stockholder nominations of candidates or proposals regarding
other business to be conducted at a special or annual meeting, as applicable, the Bylaws may have the effect of precluding the conduct
of certain business at a meeting if the proper procedures are not followed or may discourage or deter a potential acquirer from conducting
a solicitation of proxies to elect its own slate of directors or otherwise attempting to obtain control of the Company.
Authorized
but Unissued Shares. The Company’s authorized but unissued shares of common stock and preferred stock will be available for
future issuance without stockholder approval, subject to rules of the securities exchange on which the Class A common stock is listed.
These additional shares may be utilized for a variety of corporate purposes, including future public offerings to raise additional capital,
corporate acquisitions, in connection with the redemption or exchange of Holding’s Common Units and employee benefit plans. The
existence of authorized but unissued shares of common stock and preferred stock could render more difficult or discourage an attempt
to obtain control of a majority of the Company’s common stock by means of a proxy contest, tender offer, merger or otherwise.
Business
Combinations. The Company is subject to the provisions of Section 203 of the DGCL. In general, Section 203 prohibits a publicly held
Delaware corporation from engaging in a “business combination” with an “interested stockholder” for a period
of three years after the date of the transaction in which the person became an interested stockholder, unless the business combination
is approved in the following prescribed manner:
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to the time of the transaction, the board of directors of the corporation approved either the business combination or the transaction
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upon
completion of the transaction that resulted in the stockholder becoming an interested stockholder, the stockholder owned at least
85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of determining
the number of shares outstanding (1) shares owned by persons who are directors and also officers and (2) shares owned by employee
stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan
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on
or subsequent to the time of the transaction, the business combination is approved by the board and authorized at an annual or special
meeting of stockholders, and not by written consent, by the affirmative vote of at least 66 2/3% of the outstanding voting stock
which is not owned by the interested stockholder. |
Generally,
for purposes of Section 203, a “business combination” includes a merger, asset or stock sale, or other transaction resulting
in a financial benefit to the interested stockholder. An “interested stockholder” is a person who, together with affiliates
and associates, owns or, within three years prior to the determination of interested stockholder status, owned 15% or more of a corporation’s
outstanding voting securities.
Such
provisions may encourage companies interested in acquiring the Company to negotiate in advance with the Board because the stockholder
approval requirement would be avoided if the Board approves either the business combination or the transaction that results in the stockholder
becoming an interested stockholder. However, such provisions also could discourage attempts that might result in a premium over the market
price for the shares held by stockholders. These provisions also may make it more difficult to accomplish transactions that stockholders
may otherwise deem to be in their best interests.
Staggered
Board of Directors. The Amended and Restated Certificate of Incorporation provides that the Company’s Board will be classified
into three classes of directors of approximately equal size. As a result, in most circumstances, a person can gain control of the Company’s
Board only by successfully engaging in a proxy contest at two or more annual meetings.
Limitations
on Liability and Indemnification of Officers and Directors
The
bylaws limit the liability of the Company’s directors and officers to the fullest extent permitted by the DGCL and provides that
the Company will provide them with customary indemnification and advancement and prepayment of expenses. The Company has entered into
to customary indemnification agreements with each of its executive officers and directors that provide them, in general, with customary
indemnification in connection with their service to the Company or on its behalf.
Nasdaq
Capital Market Listing
Our
Class A common stock and Warrants are listed on Nasdaq under the symbols “SNAX” and “SNAXW,” respectively.
Transfer
Agent and Registrar
The
transfer agent and registrar for our Class A common stock is Continental Stock Transfer & Trust Company.
DESCRIPTION
OF WARRANTS
We
may issue other warrants in the future for the purchase of Class A common stock, preferred stock, units or other securities. Warrants
may be issued independently or together with Class A common stock, preferred stock or units offered by any prospectus supplement and/or
other offering material and may be attached to or separate from any such offered securities. Each series of warrants will be issued under
a separate warrant agreement to be entered into between us and a bank or trust company, as warrant agent, provided that we may also act
as warrant agent and enter into warrant agreements directly with the purchasers of securities offered pursuant to this prospectus. In
each case, the terms of the warrants will be set forth in the prospectus supplement and/or other offering material relating to the particular
issue of warrants. The warrant agent, if any, will act solely as our agent in connection with the warrants and will not assume any obligation
or relationship of agency or trust for or with any holders of warrants or beneficial owners of warrants.
The
following summary of certain provisions of the warrants we may issue in the future does not purport to be complete and is subject to,
and is qualified in its entirety by reference to, all provisions of the warrant agreements.
Reference
is made to the prospectus supplement and/or other offering material relating to the particular issue of warrants offered pursuant to
such prospectus supplement and/or other offering material for the terms of and information relating to such warrants, including, where
applicable:
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the
number of shares of common stock or preferred stock purchasable upon the exercise of warrants and the price at which such number
of shares of common stock or preferred stock may be purchased upon such exercise; |
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designation and number of units of other securities purchasable upon the exercise of warrants to purchase other securities and the
price at which such number of units of such other securities may be purchased upon such exercise; |
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the
date on which the right to exercise such warrants shall commence and the date on which such right shall expire; |
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U.S.
federal income tax consequences applicable to such warrants; |
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amount of warrants outstanding as of the most recent practicable date; and |
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other terms of such warrants. |
Warrants
will be issued in registered form only. The exercise price for warrants will be subject to adjustment in accordance with the applicable
prospectus supplement and/or other offering material.
Each
warrant will entitle the holder thereof to purchase such number of shares of Class A common stock, preferred stock, units or other securities
at such exercise price as shall in each case be set forth in, or calculable from, the prospectus supplement and/or other offering material
relating to the warrants, which exercise price may be subject to adjustment upon the occurrence of certain events as set forth in such
prospectus supplement and/or other offering material. After the close of business on the expiration date, or such later date to which
such expiration date may be extended by us, unexercised warrants will become void. The place or places where, and the manner in which,
warrants may be exercised shall be specified in the prospectus supplement and/or other offering material relating to such warrants.
Prior
to the exercise of any warrants to purchase Class A common stock, preferred stock, units or other securities, holders of such warrants
will not have any of the rights of holders of the underlying securities, as the case may be, purchasable upon such exercise, including
the right to receive payments of dividends, if any, on the Class A common stock purchasable upon such exercise, or to exercise any applicable
right to vote.
DESCRIPTION
OF SUBSCRIPTION RIGHTS
We
may issue subscription rights to purchase Class A common stock, preferred stock, warrants, units other securities described in this prospectus
or any combination thereof. These subscription rights may be issued independently or together with any other security offered by us and
may or may not be transferable by the stockholder receiving the subscription rights in such offering. In connection with any offering
of subscription rights, we may enter into a standby arrangement with one or more underwriters or other investors pursuant to which the
underwriters or other investors may be required to purchase any securities remaining unsubscribed for after such offering.
To
the extent appropriate, the applicable prospectus supplement will describe the specific terms of the subscription rights to purchase
shares of our securities offered thereby, including the following:
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date of determining the stockholders entitled to the rights distribution; |
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price, if any, for the subscription rights; |
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the
exercise price payable for the Class A common stock, preferred stock, warrants, units or other securities upon the exercise of the
subscription right; |
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number of subscription rights issued to each stockholder; |
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the
amount of Class A common stock, preferred stock, warrants, units or other securities that may be purchased per each subscription
right; |
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any
provisions for adjustment of the amount of securities receivable upon exercise of the subscription rights or of the exercise price
of the subscription rights; |
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the
extent to which the subscription rights are transferable; |
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the
date on which the right to exercise the subscription rights shall commence, and the date on which the subscription rights shall expire; |
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the
extent to which the subscription rights may include an over-subscription privilege with respect to unsubscribed securities; |
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material terms of any standby underwriting or purchase arrangement entered into by us in connection with the offering of subscription
rights; |
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applicable federal income tax considerations; and |
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any
other terms of the subscription rights, including the terms, procedures and limitations relating to the transferability, exchange
and exercise of the subscription rights. |
DESCRIPTION
OF SECURITIES PURCHASE CONTRACTS
We
may issue securities purchase contracts, which consist of contracts obligating holders to purchase from us, and obligating us to sell
to the holders, a specified number of shares of Class A common stock, preferred stock, warrants, units or other securities at a future
date or dates, which we refer to in this prospectus as “securities purchase contracts.” The terms and conditions for any
purchase and sale rights or obligations, as well as the price per share of the underlying securities (if applicable) and the number or
value of the underlying securities, may be fixed at the time the securities purchase contracts are issued or may be determined by reference
to a specific formula set forth in the securities purchase contracts.
The
securities purchase contracts may be issued separately or as part of units, other securities of third parties, including U.S. treasury
securities, securing the holders’ obligations to purchase the securities under the securities purchase contracts. The securities
purchase contracts may require holders to secure their obligations under the securities purchase contracts in a specified manner. The
securities purchase contracts also may require us to make periodic payments to the holders thereof or vice versa, and those payments
may be unsecured or refunded on some basis.
The
securities purchase contracts, and, if applicable, collateral or depositary arrangements, relating to the securities purchase contracts,
will be filed with the SEC in connection with the offering of securities purchase contracts. The prospectus supplement and/or other offering
material relating to a particular issue of securities purchase contracts will describe the terms of those securities purchase contracts,
including the following:
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if
applicable, a discussion of material U.S. federal income tax considerations; and |
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DESCRIPTION
OF UNITS
As
specified in the applicable prospectus supplement, we may issue units consisting of one or more shares of Class A common stock, shares
of preferred stock, warrants, subscription rights and securities purchase contracts, or any combination of the foregoing.
The
applicable prospectus supplement will specify the following terms of the units:
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the
terms of the underlying securities comprising the units, including whether and under what circumstances the underlying securities
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description of the terms of any unit agreement governing the units (if any); |
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appropriate, a discussion of material U.S. federal income tax considerations; and |
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PLAN
OF DISTRIBUTION
We
may sell securities in any one or more of the following ways from time to time: (i) through agents; (ii) to or through underwriters;
(iii) through brokers or dealers; (iv) directly to purchasers, including through a specific bidding, auction or other process; (v) upon
the exercise of subscription rights that may be distributed to our stockholders; (vi) through a combination of any of these methods of
sale or (vii) through any other methods described in a prospectus supplement. The applicable prospectus supplement and/or other offering
material will contain the terms of the transaction, name or names of any underwriters, dealers, agents and the respective amounts of
securities underwritten or purchased by them, the initial public offering price of the securities, and the applicable agent’s commission,
dealer’s purchase price or underwriter’s discount. Any dealers and agents participating in the distribution of the securities
may be deemed to be underwriters, and compensation received by them on resale of the securities may be deemed to be underwriting discounts.
Any
initial offering price, dealer purchase price, discount or commission may be changed from time to time.
The
securities may be distributed from time to time in one or more transactions, at negotiated prices, at a fixed price or fixed prices (that
may be subject to change), at market prices prevailing at the time of sale, in at the market offerings, at various prices determined
at the time of sale or at prices related to prevailing market prices.
Offers
to purchase securities may be solicited directly by us or by agents designated by us from time to time. Any such agent may be deemed
to be an underwriter, as that term is defined in the Securities Act, of the securities so offered and sold.
If
underwriters are utilized in the sale of any securities in respect of which this prospectus is being delivered, such securities will
be acquired by the underwriters for their own account and may be resold from time to time in one or more transactions, including negotiated
transactions, at fixed public offering prices or at varying prices determined by the underwriters at the time of sale. Securities may
be offered to the public either through underwriting syndicates represented by managing underwriters or directly by one or more underwriters.
If any underwriter or underwriters are utilized in the sale of securities, unless otherwise indicated in the applicable prospectus supplement
and/or other offering material, the obligations of the underwriters are subject to certain conditions precedent, and that the underwriters
will be obligated to purchase all such securities if any are purchased.
If
a dealer is utilized in the sale of the securities in respect of which this prospectus is delivered, we will sell such securities to
the dealer, as principal. The dealer may then resell such securities to the public at varying prices to be determined by such dealer
at the time of resale. Transactions through brokers or dealers may include block trades in which brokers or dealers will attempt to sell
shares as agent but may position and resell as principal to facilitate the transaction or in crosses, in which the same broker or dealer
acts as agent on both sides of the trade. Any such dealer may be deemed to be an underwriter, as such term is defined in the Securities
Act, of the securities so offered and sold. If we offer securities in a subscription rights offering to our existing securityholders,
we may enter into a standby underwriting agreement with dealers, acting as standby underwriters. We may pay the standby underwriters
a commitment fee for the securities they commit to purchase on a standby basis. If we do not enter into a standby underwriting arrangement,
we may retain a dealer-manager to manage a subscription rights offering for us.
Offers
to purchase securities may be solicited directly by us and the sale thereof may be made directly to institutional investors or others,
who may be deemed to be underwriters within the meaning of the Securities Act with respect to any resale thereof.
If
so indicated in the applicable prospectus supplement and/or other offering material, we may authorize agents and underwriters to solicit
offers by certain institutions to purchase securities at the public offering price set forth in the applicable prospectus supplement
and/or other offering material pursuant to delayed delivery contracts providing for payment and delivery on the date or dates stated
in the applicable prospectus supplement and/or other offering material. Such delayed delivery contracts will be subject only to those
conditions set forth in the applicable prospectus supplement and/or other offering material.
Agents,
underwriters and dealers may be entitled under relevant agreements to indemnification against certain liabilities, including liabilities
under the Securities Act, or to contribution with respect to payments which such agents, underwriters and dealers may be required to
make in respect thereof. The terms and conditions of any indemnification or contribution will be described in the applicable prospectus
supplement and/or other offering material.
We
may also sell shares of our Class A common stock through various arrangements involving mandatorily or optionally exchangeable securities,
and this prospectus may be delivered in connection with those sales.
We
may engage in at the market offerings into an existing trading market in accordance with Rule 415(a)(4) under the Securities Act. To
the extent that we make sales through one or more underwriters or agents in at the market offerings, we will do so pursuant to the terms
of a sales agency financing agreement or other at the market offering arrangement between us and the underwriters or agents. If we engage
in at the market sales pursuant to any such agreement or arrangement, we will issue and sell our securities through one or more underwriters
or agents, which may act on an agency basis or a principal basis. During the term of any such agreement or arrangement, we may sell securities
on a daily basis in exchange transactions or otherwise as we agreement with the underwriters or agents. Any such agreement or arrangement
will provide that any securities sold will be sold at prices related to the then-prevailing market prices for our securities. Therefore,
exact figures regarding proceeds that will be raised or commissions to be paid cannot be determined at this time. Pursuant to the terms
of the agreement or arrangement, we may agree to sell, and the relevant underwriters or agents may agree to solicit offers to purchase
blocks of our common stock. The terms of any such agreement or arrangement will be set forth in more detail in the applicable prospectus
supplement.
We
may enter into derivative, sale or forward sale transactions with third parties, or sell securities not covered by this prospectus to
third parties in privately negotiated transactions. If the applicable prospectus supplement and/or other offering material indicates,
in connection with those transactions, the third parties may sell securities covered by this prospectus and the applicable prospectus
supplement and/or other offering material, including in short sale transactions and by issuing securities not covered by this prospectus
but convertible into, or exchangeable for or representing beneficial interests in such securities covered by this prospectus, or the
return of which is derived in whole or in part from the value of such securities. The third parties may use securities received under
derivative, sale or forward sale transactions, or securities pledged by us or borrowed from us or others to settle those sales or to
close out any related open borrowings of stock, and may use securities received from us in settlement of those transactions to close
out any related open borrowings of stock. The third party in such sale transactions will be an underwriter and will be identified in
the applicable prospectus supplement (or a post-effective amendment) and/or other offering material.
Underwriters,
broker-dealers or agents may receive compensation in the form of commissions, discounts or concessions from us. Underwriters, broker-dealers
or agents may also receive compensation from the purchasers of shares for whom they act as agents or to whom they sell as principals,
or both. Compensation as to a particular underwriter, broker-dealer or agent might be in excess of customary commissions and will be
in amounts to be negotiated in connection with transactions involving shares. In effecting sales, broker-dealers may arrange for other
broker-dealers to participate in the resales.
Each
series of securities will be a new issue and, other than the common stock, which is listed on The NASDAQ Stock Market LLC, will have
no established trading market. We may elect to list any series of securities on an exchange, and in the case of the common stock, on
any additional exchange, but, unless otherwise specified in the applicable prospectus supplement and/or other offering material, we shall
not be obligated to do so. No assurance can be given as to the liquidity of the trading market for any of the securities.
Agents,
underwriters and dealers may engage in transactions with, or perform services for us and our respective subsidiaries in the ordinary
course of business.
Any
underwriter may engage in overallotment, stabilizing transactions, short covering transactions and penalty bids in accordance with Regulation
M under the Exchange Act. Overallotment involves sales in excess of the offering size, which create a short position. Stabilizing transactions
permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum. Short covering transactions
involve purchases of the securities in the open market after the distribution is completed to cover short positions. Penalty bids permit
the underwriters to reclaim a selling concession from a dealer when the securities originally sold by the dealer are purchased in a covering
transaction to cover short positions. Those activities may cause the price of the securities to be higher than it would otherwise be.
If commenced, the underwriters may discontinue any of the activities at any time. An underwriter may carry out these transactions on
The NASDAQ Stock Market LLC, in the over-the-counter market or otherwise.
The
place and time of delivery for securities will be set forth in the accompanying prospectus supplement and/or other offering material
for such securities.
LEGAL
MATTERS
The
validity of the securities offered by this prospectus will be passed upon for us by Foley & Lardner LLP. The validity of the securities
offered by this prospectus will be passed upon for any underwriters or agents by counsel named in the applicable prospectus supplement.
The opinions of Foley & Lardner LLP and counsel for any underwriters or agents may be conditioned upon and may be subject to assumptions
regarding future action required to be taken by us and any underwriters, dealers or agents in connection with the issuance of any securities.
The opinions of Foley & Lardner LLP and counsel for any underwriters or agents may be subject to other conditions and assumptions,
as indicated in the prospectus supplement.
EXPERTS
The
audited financial statements incorporated by reference in this prospectus and elsewhere in the registration statement have been so incorporated
by reference in reliance on the report of Marcum LLP, independent registered public accountants, upon the authority of said firm as experts
in accounting and auditing.
WHERE
YOU CAN FIND ADDITIONAL INFORMATION
We
have filed with the SEC a registration statement on Form S-3 under the Securities Act relating to securities offered by this prospectus.
This prospectus, which constitutes a part of the registration statement, does not contain all of the information set forth in the registration
statement or the exhibits thereto. For more information regarding us and the securities offered by this prospectus, we refer you to the
full registration statement, including the exhibits filed therewith. This prospectus summarizes certain provisions of certain contracts
and other documents filed as exhibits to which we refer you. Because the summaries may not contain all of the information that you may
find important, you should review the full text of those documents.
You
may access our SEC filings, including this registration statement, at the SEC’s website at www.sec.gov. We are subject to the information
reporting requirements of the Exchange Act and file reports, proxy statements, and other information with the SEC. These reports, proxy
statements and other information will be available for review at the SEC’s website referred to above. We also maintain a website
at www.stryve.com, at which you may access these materials free of charge as soon as reasonably practicable after they are electronically
filed with, or furnished to, the SEC. Information contained on, or that can be accessed through, our website does not constitute part
of this prospectus, and the inclusion of our website address in this prospectus is an inactive textual reference only.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The
SEC allows us to “incorporate by reference” information into this prospectus, which means that we can disclose important
information about us by referring to another document filed separately with the SEC. The information incorporated by reference is considered
to be a part of this prospectus. This prospectus incorporates by reference the documents and reports listed below other than portions
of these documents that are furnished under Item 2.02 or Item 7.01 of a current report on Form 8–K:
|
● |
our
annual report on Form
10–K for the fiscal year ended December 31, 2022, filed with the SEC on April 17, 2023; |
|
|
|
|
● |
our
quarterly report on Form
10–Q for the three months ended March 31, 2023, filed with the SEC on May 15, 2023; |
|
|
|
|
● |
our
current reports on Form 8–K filed with the SEC on February
2, 2023, April
21, 2023, and June
9, 2023; |
|
|
|
|
● |
our
definitive proxy
filed with the SEC on May 2, 2023; and |
|
|
|
|
● |
the
description of the common stock contained in our
registration statement on Form
8-A (File No. 001-38785), filed with the SEC on January 23, 2019, pursuant to Section 12 of the Exchange Act, as updated by Exhibit
4.5 of our annual report on Form 10-K for the fiscal year ended December 31, 2022, filed on April 17, 2023. |
In
addition, all documents subsequently filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, shall be deemed
to be incorporated by reference in this prospectus and to be a part hereof from the date of filing of such documents. In addition, all
reports and other documents filed by us pursuant to the Exchange Act after the date of the initial registration statement and prior to
effectiveness of the registration statement shall be deemed to be incorporated by reference into this prospectus. Any statement contained
in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes
of this prospectus to the extent that a statement contained herein or in any subsequently filed document that also is or is deemed to
be incorporated by reference herein, as the case may be, modifies or supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
Copies
of the documents incorporated herein by reference may be obtained on our website at www.stryve.com. The information on our website is
not incorporated by reference into this prospectus. These documents are also available on the SEC’s website at http://www.sec.gov.
We
will provide, without charge, to any person, including any beneficial owner, to whom a copy of this prospectus is delivered, upon oral
or written request of such person, a copy of any or all of the documents that have been incorporated by reference in this prospectus
but not delivered with the prospectus, including any exhibits to such documents that are specifically incorporated by reference in those
documents.
Please
make your request by writing or telephoning us at the following address or telephone number:
Stryve
Foods, Inc.
Post
Office Box 864
Frisco,
TX 75034
Telephone:
(972) 987-5130
DISCLOSURE
OF COMMISSION POSITION ON INDEMNIFICATION
Insofar
as indemnification for liabilities arising under the Securities Act, as amended, may be permitted to directors, officers, and controlling
persons of the registrant pursuant to the Company’s constituent documents, or otherwise, the registrant has been advised that in
the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer, or controlling person in the successful defense of any action, suit, or proceeding) is asserted by such
director, officer, or controlling person connected with the securities being registered, we will, unless in the opinion of our counsel
the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
STRYVE
FOODS, INC.
Class
A Common Stock
Preferred
Stock
Warrants
Subscription
Rights
Securities
Purchase Contracts
Units
PROSPECTUS
The
date of this prospectus is , 2023
We
have not authorized any dealer, salesperson or other person to give any information or represent anything not contained in this prospectus.
You must not rely on any unauthorized information. If anyone provides you with different or inconsistent information, you should not
rely on it. This prospectus does not offer to sell any securities in any jurisdiction where it is unlawful. Neither the delivery of this
prospectus, nor any sale made hereunder, shall create any implication that the information in this prospectus is correct after the date
hereof.
The
information in this prospectus supplement is not complete and may be changed. We may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is effective. This prospectus supplement is not an offer to sell these securities
nor a solicitation of an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
PRELIMINARY
PROSPECTUS SUPPLEMENT
SUBJECT
TO COMPLETION, DATED JUNE 30, 2023
Up
to $5.7 Million
Class
A Common Stock
We
have entered into an at the market offering agreement (the “Sales Agreement”) with Craig-Hallum Capital Group LLC (the “Sales
Agent”), relating to the sale of the shares of our Class A common stock offered by this prospectus supplement and the accompanying
prospectus. In accordance with the terms of the Sales Agreement, under this prospectus supplement and the accompanying prospectus, we
may offer and sell shares of our Class A common stock, $0.0001 par value, having an aggregate offering price of up to $5.7 million
from time to time through or to the Sales Agent, acting as our agent or as principal.
Our
shares of Class A common stock and Warrants are listed on Nasdaq under the symbols “SNAX” and “SNAXW,” respectively.
On June 23, 2023, the closing sale price per share of our Class A common stock and Warrants was $0.5506 and $0.0499, respectively.
Sales
of our Class A common stock, if any, under this prospectus supplement and the accompanying prospectus may be made in sales deemed to
be “at the market offerings” as defined in Rule 415 promulgated under the Securities Act of 1933, as amended (the “Securities
Act”), including, without limitation, in ordinary brokers’ transactions, to or through a market maker, on or through
the Nasdaq Capital Market (“Nasdaq”) or any other trading market where Class A common stock may be traded, in the over-the-counter
market, in privately negotiated transactions, or through a combination of any such methods of sale. If we and the Sales Agent agree on
any method of distribution other than sales of shares of Class A common stock on or through Nasdaq or another existing trading market
in the United States at market prices, we will file a further prospectus supplement providing all information about such offering as
required by Rule 424(b) under the Securities Act. The Sales Agent is not required to sell any specific number or dollar amount of shares,
but will act as our sales agent using commercially reasonable efforts consistent with its normal trading and sales practices, on mutually
agreed terms between the Sales Agent and us. There is no arrangement for funds to be received in any escrow, trust or similar arrangement.
The
compensation to the Sales Agent for sales of our Class A common stock under the Sales Agreement will be an amount equal to 3.0% of the
gross proceeds of any sale of shares of our common stock under the Sales Agreement. The amount of net proceeds we will receive from this
offering, if any, will depend upon the actual number of shares of our Class A common stock sold and the market price at which such shares
are sold. Because there is no minimum offering amount required as a condition of this offering, the actual total public offering amount,
commissions and net proceeds to us, if any, are not determinable at this time. See “Plan of Distribution” beginning on
page S-8 for additional information regarding the compensation to be paid to the Sales Agent.
In
connection with the sale of our Class A common stock on our behalf, the Sales Agent may be deemed to be an “underwriter”
within the meaning of the Securities Act and the compensation of the Sales Agent may be deemed to be underwriting commissions or discounts.
We have also agreed to provide indemnification and contribution to the Sales Agent with respect to certain civil liabilities, including
liabilities under the Securities Act.
The
aggregate market value of our outstanding Class A common stock held by non-affiliates pursuant to General Instruction I.B.6 of Form S-3
was approximately $17.1 million, which was calculated based on 26,168,903 shares of Class A common stock outstanding as
of June 23, 2023, of which 5,201,118 shares were held by affiliates, and a price of $0.8160 per share, which was the closing price
of our common stock on Nasdaq on May 26, 2023. We have not offered any securities pursuant to General Instruction I.B.6 of Form S-3 during
the prior 12 calendar month period that ends on, and includes, the date of this prospectus.
We
are an “emerging growth company,” as that term is used in the Jumpstart Our Business Startups Act of 2012, and are subject
to reduced public company reporting requirements.
Investing
in our Class A common stock involves a high degree of risk. You should read this prospectus supplement and the accompanying prospectus
carefully before you make your investment decision. See “Risk Factors” beginning on page S-5 of this prospectus supplement,
the accompanying prospectus, and the other documents we file or have filed with the Securities and Exchange Commission that are incorporated
by reference in this prospectus supplement and in the accompanying prospectus, for a discussion of the factors you should consider before
investing in our Class A common stock.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined
if this prospectus supplement or the accompanying prospectus is truthful or complete. Any representation to the contrary is a criminal
offense.
Craig-Hallum
The
date of this prospectus supplement is
, 2023
TABLE
OF CONTENTS
We
are offering to sell, and are seeking offers to buy, the securities only in jurisdictions where such offers and sales are permitted.
The distribution of this prospectus supplement and the accompanying prospectus and the offering of the securities in certain jurisdictions
may be restricted by law. Persons outside the United States who come into possession of this prospectus supplement and the accompanying
prospectus must inform themselves about and observe any restrictions relating to the offering of the securities and the distribution
of this prospectus supplement and the accompanying prospectus outside the United States. This prospectus supplement and the accompanying
prospectus do not constitute, and may not be used in connection with, an offer to sell, or a solicitation of an offer to buy, any securities
offered by this prospectus supplement and the accompanying prospectus to or by any person in any jurisdiction in which it is unlawful
for such person to make such an offer or solicitation.
ABOUT
THIS PROSPECTUS SUPPLEMENT
This
prospectus supplement relates to the offering of shares of our Class A common stock. Before buying any shares of Class A common stock
offered hereby, we urge you to read carefully this prospectus supplement, the accompanying prospectus, and any free writing prospectus
that we have authorized for use in connection with this offering, together with the documents incorporated by reference herein, as described
under the heading “Incorporation by Reference.” These documents contain important information that you should consider when
making your investment decision. This prospectus supplement contains information about the Class A common stock offered hereby.
This
document is in two parts. The first part is this prospectus supplement, which describes the specific terms of the securities we are offering.
The second part is the accompanying prospectus, including the documents incorporated by reference therein, which provides more general
information, some of which may not apply to this offering. This prospectus supplement and the information incorporated by reference in
this prospectus supplement also may add to, update and change information contained in, or incorporated by reference into, the accompanying
prospectus. Generally, when we refer to this prospectus, we are referring to both parts of this document combined. To the extent there
is a conflict between (i) the information contained in this prospectus supplement and (ii) the information contained in the accompanying
prospectus or in any document incorporated by reference that was filed with the Securities and Exchange Commission (the “SEC”)
before the date of this prospectus supplement, you should rely on the information in this prospectus supplement. If any statement in
one of these documents is inconsistent with a statement in another document having a later date, for example, a document incorporated
by reference in this prospectus supplement or the accompanying prospectus, the statement in the document having the later date modifies
or supersedes the earlier statement.
The
accompanying prospectus is part of a registration statement that we filed with the SEC using a shelf registration process. Under the
shelf registration process, from time to time, we may offer and sell any of the securities described in the accompanying prospectus separately
or together with other securities described therein.
You
should rely only on the information contained in, or incorporated by reference into, this prospectus supplement and the accompanying
prospectus and any related free writing prospectus that we authorized to be distributed to you. We have not authorized anyone to provide
you with different or additional information. If anyone provides you with different or additional information, you should not rely on
it. Neither we nor anyone acting on our behalf is making an offer to sell these shares of common stock in any jurisdiction where the
offer or sale is not permitted, and you should not consider this prospectus supplement or the accompanying prospectus to be an offer
or solicitation relating to the securities in any jurisdiction in which such an offer or solicitation relating to the securities is not
authorized. You should assume that the information contained in this prospectus supplement, the accompanying prospectus, any related
free writing prospectus that we have authorized to be delivered to you and the documents incorporated by reference herein and therein
is accurate only as of their respective dates, regardless of the time of delivery of such documents or of any sale of securities. Our
business, financial condition, results of operations and prospects may have changed since those dates. Furthermore, you should not consider
this prospectus supplement or the accompanying prospectus to be an offer or solicitation relating to the securities if the person making
the offer or solicitation is not qualified to do so, or if it is unlawful for you to receive such an offer or solicitation.
For
purposes of this prospectus supplement and the accompanying prospectus, references to “Company,” “Stryve Foods, Inc.,”
“we,” “us,” “our,” and “ours” refer to Stryve Foods, Inc. and its subsidiaries where
the context so requires, unless otherwise indicated or the context otherwise requires.
SPECIAL
NOTE REGARDING FORWARD LOOKING STATEMENTS
This
prospectus supplement and the documents incorporated by reference in this prospectus contain forward-looking statements within the meaning
of Section 27A of the Securities Act of 1933, or the Securities Act, and Section 21E of the Securities Exchange Act of 1934, or the Exchange
Act. Forward-looking statements provide our current expectations or forecasts of future events. Forward-looking statements include statements
about our expectations, beliefs, plans, objectives, intentions, assumptions and other statements that are not historical facts. In addition,
any statements that refer to projections, forecasts or other characterizations of future events or circumstances, including any underlying
assumptions, are forward-looking statements. The words “anticipates,” “believe,” “continue,” “could,”
“estimate,” “expect,” “intends,” “may,” “might,” “plan,” “possible,”
“potential,” “predicts,” “project,” “should,” “would” and similar expressions
may identify forward-looking statements, but the absence of these words does not mean that a statement is not forward-looking. Examples
of forward-looking statements in this prospectus supplement and the documents incorporated by reference into this prospectus include,
but are not limited to, statements regarding disclosure concerning our operations, cash flows, financial position and dividend policy.
These forward-looking statements include, but are not limited to:
| ● | our
market opportunity and the potential growth of that market; |
| ● | the
impact of inflation and cost increases on our business; |
| ● | our
strategy, expected outcomes and growth prospects; |
| ● | trends
in our operations, industry and markets; |
| ● | our
future profitability, indebtedness, liquidity, access to capital and financial condition,
and our ability to continue as a going concern; and |
| ● | our
integration of companies that we have acquired or may acquire into our operations |
Forward-looking
statements are based on management’s current expectations, estimates, forecasts and projections about our business and the industry
in which we operate, and management’s beliefs and assumptions are not guarantees of future performance or development and involve
known and unknown risks, uncertainties and other factors that are in some cases beyond our control, including those described in the
section titled “Risk Factors” and elsewhere in this prospectus and the documents incorporated by reference into this
prospectus.
You
should not rely upon forward-looking statements as predictions of future events. Although we believe that the expectations reflected
in the forward-looking statements are reasonable, we cannot guarantee that the future results, levels of activity, performance or events
and circumstances reflected in the forward-looking statements will be achieved or occur. We undertake no obligation to update publicly
any forward-looking statements for any reason after the date of this prospectus to conform these statements to actual results or to changes
in our expectations, except as required by law.
You
should read this prospectus and the documents we have filed with the SEC that are incorporated by reference in this prospectus with the
understanding that our actual future results, levels of activity, performance and events and circumstances may be materially different
from what we expect.
PROSPECTUS
SUPPLEMENT SUMMARY
The
following summary highlights basic information about us, this offering, and selected information contained elsewhere in or incorporated
by reference into this prospectus supplement. This summary is not complete and does not contain all of the information that you should
consider before deciding whether to invest in our Class A common stock. You should review this entire prospectus supplement and the accompanying
prospectus carefully, including our consolidated financial statements and other information incorporated by reference in this prospectus
supplement and the accompanying prospectus, before making an investment decision. In addition, please read the “Risk Factors”
section beginning on page S-5 of this prospectus supplement.
Overview
Stryve
is an emerging healthy snacking company which manufactures, markets and sells highly differentiated healthy snacking products that Stryve
believes can disrupt traditional snacking categories. Stryve’s mission is “to help Americans snack better and live happier,
better lives.” Stryve offers convenient snacks that are lower in sugar and carbohydrates and higher in protein than other snacks.
Stryve offers all-natural, delicious snacks which it believes are nutritious and offer consumers a convenient healthy snacking option
for their on-the-go lives.
Stryve’s
current product portfolio consists primarily of air-dried meat snack products marketed under the Stryve®, Kalahari®, Braaitime®,
and Vacadillos® brand names. Unlike beef jerky, Stryve’s all-natural air-dried meat snack products are made of beef and spices,
are never cooked, generally contain zero grams of sugar, and are free of monosodium glutamate (MSG), gluten, nitrates, nitrites, and
preservatives. As a result, Stryve’s products are Keto and Paleo diet friendly. Further, based on protein density and sugar content,
Stryve believes that its air-dried meat snack products are some of the healthiest shelf-stable snacks available today.
Stryve
distributes its products in major retail channels, primarily in North America, including grocery, club stores and other retail outlets,
as well as directly to consumers through its owned e-commerce websites as well as direct to consumer through the Amazon platform.
Stryve
believes increased consumer focus in the U.S. on health and wellness will continue to drive growth of the nutritional snacking category
and increase demand for Stryve’s products. Stryve has made substantial investments since its inception in product development,
establishing its manufacturing facility, and building its marketing, sales and operations infrastructure to grow its business. Stryve
intends to continue to invest in product innovation and acquisition, improving its supply chain, increasing its manufacturing capacity,
and expanding its marketing and sales initiatives to continue its growth.
Additional
information about us can be found in our most recent annual report on Form 10-K incorporated by reference herein together with any material
changes thereto contained in subsequently filed quarterly reports on Form 10-Q.
Our
Annual Report on Form 10-K for the year ended December 31, 2022 and the subsequent reports filed pursuant to the Exchange Act provide
additional information about our business, operations and financial condition.
Corporate
Information
Andina
Acquisition Corp. III (Andina) was a blank check company incorporated as a Cayman Islands exempted company on July 29, 2016. Stryve Foods,
LLC was a Texas limited liability company formed on January 13, 2017. On July 20, 2021, we completed the Business Combination, under
which Andina was domesticated as a corporation in the State of Delaware, renamed “Stryve Foods, Inc.” and was organized as
an “Up-C” structure in which substantially all of the assets of the combined company are held by Andina Holdings, LLC (Holdings),
and our only assets are our equity interests in Holdings. As the managing member of Holdings, we have full, exclusive and complete discretion
to manage and control the business of Holdings and to take all action we deem necessary, appropriate, advisable, incidental, or convenient
to accomplish the purposes of Holdings. As of the open of trading on July 21, 2021, our Class A common stock and Warrants, formerly those
of Andina, began trading on Nasdaq as “SNAX” and “SNAXW,” respectively.
Our
principal executive offices are located at P.O. Box 864, Frisco, Texas 75034, and our telephone number is (972) 987-5130. Our website
address is www.stryve.com. Information contained on our website is not a part of this prospectus, and the inclusion of our website address
in this prospectus is an inactive textual reference only.
THE
OFFERING
Issuer |
Stryve
Foods, Inc. |
|
|
Class
A common stock offered by us |
Shares
of our Class A common stock having an aggregate offering price of up to $5.7 million. |
|
|
Class
A common stock outstanding prior to the offering* |
26,168,903
shares as of June 23, 2023. |
|
|
Manner
of offering |
“At
the market offering” that may be made from time to time through or to the Sales Agent, as sales agent or principal. See “Plan
of Distribution” on page S-8 of this prospectus supplement. |
|
|
Use
of proceeds |
We
currently intend to use any net proceeds from this offering for general corporate purposes, including working capital. We
may use a portion of the net proceeds of this offering to repay our outstanding indebtedness. See “Use of Proceeds”
on page S-6 for additional information. |
|
|
Risk
factors |
An
investment in our Class A common stock involves a high degree of risk. See “Risk Factors” beginning on page S-5 of this
prospectus supplement, the “Risk Factors” section in our most recent Annual Report on Form 10-K and any subsequent Quarterly
Reports filed on Form 10-Q, and any amendment or update thereto reflected in subsequent filings with the SEC, which are incorporated
by reference herein, and other information included in this prospectus supplement, the accompanying prospectus and the documents
incorporated by reference in this prospectus supplement and the accompanying prospectus for a discussion of factors you should carefully
consider before deciding to invest in our Class A common stock. |
|
|
Market
for our Class A common stock |
Our
Class A common stock is traded on the Nasdaq Capital Market under the symbol “SNAX.” |
*The
number of Class A shares outstanding as of June 23, 2023 excludes the following:
|
● |
6,145,995
shares of Class V Common Stock; |
|
|
|
|
● |
10,997,500
Warrants to purchase an equal number of shares of Class A common stock at an exercise price of $11.50 per share; |
|
|
|
|
● |
10,294,118
warrants to purchase an equal number of shares of Class A common stock at an exercise price of $3.60 per share; |
|
|
|
|
● |
7,964,550
warrants to purchase an equal number of shares of Class A common stock at an exercise price of $0.5134 per share; and |
|
|
|
|
● |
shares
of our Class A common stock subject to outstanding awards and shares reserved for future award grants under our equity incentive
plans. |
RISK
FACTORS
An
investment in our Class A common stock involves a high degree of risk. Prior to making a decision about investing in our Class A common
stock, you should consider carefully the specific risk factors discussed in the sections entitled “Risk Factors” contained
in our most recent Annual Report on Form 10-K for the year ended December 31, 2022, as filed with the SEC on April 17, 2023, which are
incorporated into this prospectus supplement and the accompanying prospectus by reference in their entirety, as updated or superseded
by the risks and uncertainties described under similar headings in the other documents that are filed after the date hereof and incorporated
by reference into this prospectus supplement and the accompanying prospectus, together with other information in this prospectus supplement
and the accompanying prospectus, the documents incorporated by reference and any free writing prospectus that we may authorize for use
in connection with this offering. These risks and uncertainties are not the only risks and uncertainties we face. Additional risks and
uncertainties not presently known to us, or that we currently view as immaterial, may also impair our business. Past financial performance
may not be a reliable indicator of future performance, and historical trends should not be unduly relied upon to anticipate results or
trends in future periods. If any of the risks or uncertainties described in our SEC filings or any additional risks and uncertainties
actually occur, our business, financial condition, results of operations and cash flow could be materially and adversely affected. In
that case, the trading price of our Class A common stock could decline and you might lose all or part of your investment. Please also
read carefully the section above titled “Forward-Looking Information.”
Risks
Related to this Offering and an Investment in Our Class A Common Stock
Stryve has a history
of losses and may be unable to achieve or sustain profitability.
Stryve has experienced
net losses since its inception. In the years ended December 31, 2022 and 2021 and three months ended March 31, 2023, Stryve incurred
net losses of $33.2 million, $32.0 million and $4.2 million, respectively. Stryve acknowledges that its operating expenses and capital
expenditures may increase in the foreseeable future as it continues to increase its customer base and supplier network, expand its product
offerings and brands, expand marketing channels, invest in facilities, hire additional employees and enhance technology and production
capabilities. The efforts to grow may prove more expensive than anticipated, and Stryve may not succeed in increasing its revenues and
margins sufficiently to offset the potentially increased expenses. In addition, many of Stryve’s expenses, including certain costs
associated with its existing and any future manufacturing facilities, are fixed and may impact Stryve’s ability to reduce its losses.
Accordingly, Stryve may not be able to achieve or sustain profitability and it may incur significant losses for the foreseeable future.
Our financial statements contain a statement
regarding a substantial doubt about the Company’s ability to continue as a going concern.
We incurred net losses of
$33.1 million, $32.0 million and $4.2 million for the years ended December 31, 2022 and 2021 and three months ended March 31, 2023, respectively,
and have an accumulated deficit of approximately $117.3 million from the inception of the Company prior to our business combination through
December 31, 2022. Our consolidated financial statements for the year ended December 31, 2022 were prepared in accordance with generally
accepted accounting principles applicable to a going concern, which contemplates the realization of assets and the satisfaction of liabilities
in the normal course of business. Based on an evaluation of our operating conditions, such conditions raise substantial doubt about our
ability to continue as a going concern.
In May of 2022, Stryve announced
a leadership change with Chris Boever stepping in as the new Chief Executive Officer of the Company. With this change in leadership,
management thoughtfully reviewed the business, strategy, near-term prospects, and its path to profitability. We examined every area of
spending throughout our business and believe we identified ways to drive efficiencies, eliminate unnecessary expense, and focus on the
highest and best use of each dollar. Moving forward, we believe our optimized spending plan will begin to materially benefit from portfolio-wide
price increases and productivity initiatives throughout our supply chain. While we intend to continue to invest to drive meaningful growth
in net sales, we are doing so in a more disciplined manner that acknowledges the fundamental changes in direct-to-consumer advertising
markets. By monitoring our unit economics closely, maintaining an optimized spending profile, and seeking to meaningfully grow net sales,
we believe we will be able to drive further reductions in our net losses moving forward. Based on the actions we have taken and those
we plan to take, we believe we have alleviated the substantial doubt previously described and have sufficient liquidity to meet our obligations
as they become due over the next twelve months, however, there can be no assurance, that we will be successful in completing such actions
and realizing the anticipated cost savings.
Our ability to continue
as a going concern is dependent on our ability to obtain the necessary financing to meet our obligations and repay our liabilities arising
from the ordinary course of business operations when they become due. We are also currently evaluating several different strategies to
enhance our liquidity position. These strategies may include, but are not limited to, pursuing additional actions under our business
reorganization plan, and seeking additional financing from both the public and private markets through the issuance of equity or debt
securities. The outcome of these matters cannot be predicted with any certainty at this time. If capital is not available to us when,
and in the amounts needed, we could be required to delay, scale back, or abandon some of our operations, which could materially harm
our business, financial condition and results of operations.
The substantial doubt about
our ability to continue as a going concern may affect the price of our Class A common stock, may impact our relationship with third parties
with whom we do business, including our customers, vendors, lenders and employees, may impact our ability to raise additional capital
and may impact our ability to comply going forward with covenants in our debt agreements.
Fluctuations
in the price of our Class A common stock, including as a result of actual or anticipated sales of shares by us and/or our directors,
officers or stockholders, may make our Class A common stock more difficult to resell.
The
market price and trading volume of our Class A common stock have been, and may continue to be, subject to significant fluctuations due
not only to general stock market conditions, but also to changes in sentiment in the market regarding the industry in which we operate,
our operations, business prospects or liquidity, or this offering. In addition to the risk factors discussed in our periodic reports
and in this prospectus supplement, the price and volume volatility of our Class A common stock may be affected by actual or anticipated
sales of Class A common stock by us and/or our directors, officers or stockholders, whether in the market, in connection with business
acquisitions, in this offering or in subsequent offerings. Stock markets in general have at times experienced extreme volatility unrelated
to the operating performance of particular companies. These broad market fluctuations may adversely affect the trading price of our Class
A common stock, regardless of our operating results.
As
a result, these fluctuations in the market price and trading volume of our Class A common stock may make it difficult to predict the
market price of our Class A common stock in the future, cause the value of your investment to decline and make it more difficult to resell
our Class A common stock.
Management
will have broad discretion as to the use of the proceeds of this offering, and we may use the proceeds in ways in which you and other
stockholders may disagree.
We
have not designated the amount of net proceeds we will receive from this offering for any particular purpose. Our management will have
broad discretion over the use and investment of the net proceeds from this offering, and, accordingly, investors in this offering will
need to rely upon the judgment of our management with respect to the use of proceeds, with only limited information concerning our specific
intentions. Our stockholders may not agree with the manner in which our management chooses to allocate and spend the net proceeds. We
may use a portion of the net proceeds of this offering to repay our outstanding indebtedness.
If
you purchase our Class A common stock in this offering, you may incur immediate and substantial dilution in the net tangible book value
of your shares.
The
offering price per share in this offering may exceed the net tangible book value per share of our Class A common stock outstanding at
the time of sale. As of March 31, 2023, assuming that an aggregate of $5.7 million of shares of our Class A common
stock are sold at a price of $0.5506 per share, the last reported sale price of our Class A common stock on Nasdaq on June 23, 2023,
investors in this offering would experience immediate dilution of $0.5628 per share, representing the difference between our as
adjusted net tangible book value (deficit) per share of $(0.0122), after giving effect to this offering, and the assumed
offering price. For a further description of the dilution that you may experience immediately after this offering, see the section titled
“Dilution.”
You
may experience future dilution as a result of future equity offerings or acquisitions.
In
order to raise additional capital, we may in the future offer additional shares of our Class A common stock or other securities convertible
into or exchangeable for our Class A common stock at prices that may not be the same as the price per share in this offering. We may
sell shares or other securities in any future offering at a price per share that is less than the price per share paid by investors in
this offering, and investors purchasing shares or other securities in the future could have rights superior to existing stockholders.
The price per share at which we sell additional shares of our Class A common stock, or securities convertible or exchangeable into our
Class A common stock, in future transactions or acquisitions may be higher or lower than the price per share paid by investors in this
offering.
In
addition, we may engage in one or more potential acquisitions in the future, which could involve issuing our Class A common stock as
some or all of the consideration payable by us to complete such acquisitions. If we issue Class A common stock or securities linked to
our Class A common stock, the newly issued securities may have a dilutive effect on the interests of the holders of our Class A common
stock. Additionally, future sales of newly issued shares used to effect an acquisition could depress the market price of our Class A
common stock.
The
actual number of shares we will issue in this offering under the Sales Agreement with the Sales Agent, at any one time or in total, is
uncertain.
Subject
to certain limitations set forth in the Sales Agreement with the Sales Agent and compliance with applicable law, we have the discretion
to deliver placement notices to the Sales Agent at any time throughout the term of the Sales Agreement. The number of shares that are
sold by the Sales Agent after we deliver a placement notice will fluctuate based on the market price of our Class A common stock during
the sales period and the limits we set with the Sales Agent.
The
Class A common stock offered hereby will be sold in “at the market offerings”, and investors who buy shares at different
times will likely pay different prices.
Investors
who purchase shares in this offering at different times will likely pay different prices, and so may experience different outcomes in
their investment results. We will have discretion, subject to market demand, to vary the timing, prices, and numbers of shares sold,
and there is no minimum or maximum sales price. Investors may experience a decline in the value of their shares as a result of share
sales made at prices lower than the prices they paid.
Our
Class A common stock may become the target of a “short squeeze.”
Recently,
the securities of several companies have increasingly experienced significant and extreme volatility in stock price due to short sellers
of common stock and buy-and-hold decisions of longer investors, resulting in what is sometimes described as a “short squeeze.”
Short squeezes have caused extreme volatility in those companies and in the market and have led to the price per share of those companies
to trade at a significantly inflated rate that is disconnected from the underlying value of the company. Sharp rises in a company’s
stock price may force traders in a short position to buy the shares to avoid even greater losses. Many investors who have purchased shares
in those companies at an inflated rate face the risk of losing a significant portion of their original investment as the price per share
has declined steadily as interest in those shares have abated. We may be a target of a short squeeze, and investors may lose a significant
portion or all of their investment if they purchase our shares at a rate that is significantly disconnected from our underlying value.
Nasdaq
may delist our securities from trading on its exchange which could limit investors’ ability to make transactions in our securities
and subject us to additional trading restrictions.
Our
securities are currently listed on the Nasdaq. If Nasdaq delists our securities from trading on its exchange, we could face significant
material adverse consequences, including:
| ● | a
limited availability of market quotations for our securities; |
| ● | reduced
liquidity with respect to our securities; |
| ● | a
determination that shares of our Class A common stock are “penny stock” which
will require brokers trading in our shares to adhere to more stringent rules, possibly resulting
in a reduced level of trading activity in the secondary trading market for our shares; |
| ● | a
limited amount of news and analyst coverage; and |
| ● | a
decreased ability to issue additional securities or obtain additional financing in the future. |
On
August 4, 2022, the Company received a deficiency letter from the Nasdaq Listing Qualifications Department (the “Staff”)
notifying the Company that, for the last 30 consecutive business days, the closing bid price for the Company’s Class A common stock
has been below the minimum $1.00 per share required for continued listing on The Nasdaq Capital Market pursuant to Nasdaq Listing Rule
5550(a)(2) (“Rule 5550(a)(2)”). On February 1, 2023, the Company received written notification from the Staff, granting the
Company’s request for a 180-day extension to regain compliance with Rule 5550(a)(2). The Company now has until July 31, 2023 to
meet the requirement. The Company intends to complete a reverse stock split to regain compliance with the Bid Price Rule under the Nasdaq
Listing Rules.
If
our securities are delisted from Nasdaq due to non-compliance with Rule 5550(a)(2) or the failure to satisfy another applicable Nasdaq
rule, such delisting would have a material adverse impact on the trading price and ability to transfer our securities.
USE
OF PROCEEDS
In
accordance with the terms of the Sales Agreement, under this prospectus supplement and the accompanying prospectus, we may issue and
sell shares of our Class A common stock having aggregate gross sales proceeds of up to $5.7 million from time to time through
or to the Sales Agent. The amount of net proceeds we will receive from this offering, if any, will depend upon the actual number of shares
of our Class A common stock sold and the market price at which such shares are sold. Further, because there is no minimum offering amount
required as a condition of this offering, the actual total public offering amount, commissions and net proceeds to us, if any, are not
determinable at this time.
We
currently intend to use any net proceeds from this offering for general corporate purposes, including working capital. We may use
a portion of the net proceeds of this offering to repay our outstanding indebtedness. Our management will have broad discretion in
the allocation of the net proceeds of this offering for any purpose, and investors will be relying on the judgment of our management
with regard to the use of these net proceeds.
DILUTION
If
you invest in our Class A common stock, your interest will be diluted to the extent of the difference between the price per share you
pay in this offering and the net tangible book value per share of our Class A common stock immediately after this offering. Our historical
net tangible book value (deficit) of our Class A common stock as of March 31, 2023 was approximately $(5.9) million, or approximately
$(0.2268) per share of Class A common stock based upon 25,881,391 shares then outstanding. Our historical net tangible book value (deficit)
per share is equal to our total tangible assets, less our total liabilities, divided by the total number of shares of Class A common
stock outstanding as of March 31, 2023.
After
giving effect to the sale of $5.7 million of our Class A common stock at an assumed offering price of $0.5506 per share, the
last reported sale price of our Class A common stock on the Nasdaq Capital Market on June 23, 2023, and after deducting commissions and
estimated offering expenses payable by us, the as adjusted net tangible book value of our Class A common stock as of March 31, 2023
would have been approximately $(0.4) million or $(0.0122) per share. The change represents an immediate increase
in net tangible book value per share of our Class A common stock of $0.2146 per share to existing stockholders and an immediate
dilution of $0.5628 per share to new investors in this offering.
The
following table illustrates this per share dilution.
Assumed offering price per share | |
| | | |
$ | 0.5506 | |
Net tangible book value (deficit) per share
as of March 31, 2023 | |
$ | (0.2268 | ) | |
| | |
Increase in net tangible
book value per share attributable to the offering | |
$ | 0.2146 | | |
| | |
As adjusted net tangible
book value per share after giving effect to this offering | |
| | | |
$ | (0.0122 | ) |
Dilution per share to
new investors participating in the offering | |
| | | |
$ | 0.5628 | |
The table above assumes for
illustrative purposes that an aggregate of $5.7 million of shares of our Class A common stock are sold at a price of $0.5506
per share, the last reported sale price of our Class A common stock on Nasdaq Capital Market on June 23, 2023. The shares sold in
this offering, if any, will be sold from time to time at various prices. An increase of $0.25 per share in the price at which the shares
are sold from the assumed offering price of $0.5506 per share shown in the table above, assuming all of our offered Class A common stock
in the aggregate amount of $5.7 million is sold at that price, our as adjusted net tangible book value (deficit) per share after
this offering would be $(0.0133) per share and the dilution in net tangible book value per share to new investors would be
$0.5639 per share, after deducting commissions and estimated offering expenses payable by us. A decrease of $0.25 per share in the
price at which the shares are sold from the assumed offering price of $0.5506 per share shown in the table above, assuming all of our
offered Class A common stock in the aggregate amount of $5.7 million is sold at that price, our as adjusted net tangible book
value (deficit) per share after this offering would be $(0.0098) per share and the dilution in net tangible book value per share to new investors would be $0.5604 per share, after deducting commissions and estimated offering expenses payable
by us.
The
information discussed above is illustrative only and may differ based on the actual offering price and the actual number of shares offered.
The
table above is based on 25,881,391 shares of common stock outstanding as of March 31, 2023, and does not include, as of that date:
| ● | 6,145,995
shares of Class V Common Stock; |
| ● | 10,997,500
Warrants to purchase an equal number of shares of Class A common stock at an exercise price
of $11.50 per share; |
| ● | 10,294,118
warrants to purchase an equal number of shares of Class A common stock at an exercise price
of $3.60 per share; and |
| ● | shares
of our Class A common stock subject to outstanding awards and shares reserved for future
award grants under our equity incentive plans. |
To
the extent outstanding options or warrants are exercised, there will be further dilution to investors. In addition, to the extent that
we issue additional equity securities in connection with future capital raising activities, our then-existing stockholders may experience
dilution.
PLAN
OF DISTRIBUTION
We
have entered into an at the market offering agreement (the “Sales Agreement”) with Craig-Hallum Capital Group LLC
(the “Sales Agent”), under which we may issue and sell from time to time up to $5.7 million of our Class A common
stock through or to the Sales Agent as our sales agent or principal. Sales of our Class A common stock, if any, will be made at market
prices by any method that is deemed to be an “at the market offering” as defined in Rule 415 under the Securities Act, including,
without limitation, in ordinary brokers’ transactions, to or through a market maker, on or through Nasdaq or any other trading
market where Class A common stock may be traded, in the over-the-counter market, in privately negotiated transactions or through a combination
of any such methods. If we and the Sales Agent agree on any method of distribution other than sales of shares of Class A common stock
on or through Nasdaq or another existing trading market in the United States at market prices, we will file a further prospectus supplement
providing all information about such offering as required by Rule 424(b) under the Securities Act. If agreed between us and the Sales
Agent, the Sales Agent may purchase shares of our Class A common stock as principal.
The
Sales Agent will offer our Class A common stock subject to the terms and conditions of the Sales Agreement on a daily basis or as otherwise
agreed upon by us and the Sales Agent. We will designate the maximum amount of Class A common stock to be sold through the Sales Agent
on a daily basis or otherwise determine such maximum amount together with the Sales Agent. Subject to the terms and conditions of the
Sales Agreement, the Sales Agent will use its commercially reasonable efforts to sell on our behalf all of the shares of Class A common
stock requested to be sold by us. We may instruct the Sales Agent not to sell Class A common stock if the sales cannot be effected at
or above the price designated by us in any such instruction. The Sales Agent or we may suspend the offering of our Class A common stock
being made through the Sales Agent under the Sales Agreement upon proper notice to the other party. The Sales Agent and we each have
the right, by giving written notice as specified in the Sales Agreement, to terminate the Sales Agreement in each party’s sole
discretion at any time.
The
aggregate compensation payable to the Sales Agent as sales agent equals 3.0% of the gross sales price of the shares sold through it pursuant
to the Sales Agreement. We have also agreed to reimburse the Sales Agent up to $50,000 of its legal expenses incurred in connection with
this offering. We estimate that the total expenses of the offering payable by us, excluding commissions payable under the Sales Agreement,
will be approximately $100,000.
The
remaining sales proceeds, after deducting any expenses payable by us and any transaction fees imposed by any governmental, regulatory,
or self-regulatory organization in connection with the sales, will equal our net proceeds for the sale of such Class A common stock.
The
Sales Agent will provide written confirmation to us following the close of trading on the Nasdaq Capital Market on each day in which
Class A common stock is sold through it as sales agent under the Sales Agreement. Each confirmation will include the number of shares
of Class A common stock sold through it as sales agent on that day, the volume weighted average price of the shares sold, the percentage
of the daily trading volume and the net proceeds to us.
We
will report at least quarterly the number of shares of Class A common stock sold through the Sales Agreement, the net proceeds to us
and the compensation paid by us to the Sales Agent in connection with the sales of Class A common stock.
The
settlement for sales of Class A common stock between us and the Sales Agent will occur on the second trading day following the date on
which the sale was made, or any such other settlement cycle as may be in effect pursuant to Rule 15c6-1 under the Exchange Act. . There
is no arrangement for funds to be received in an escrow, trust or similar arrangement.
In
connection with the sales of our Class A common stock on our behalf, the Sales Agent may be deemed to be an “underwriter”
within the meaning of the Securities Act, and the compensation paid to the Sales Agent may be deemed to be underwriting commissions or
discounts. We have agreed in the Sales Agreement to provide indemnification and contribution to the Sales Agent against certain liabilities,
including liabilities under the Securities Act. To the extent required by Regulation M promulgated under the Exchange Act, the Sales
Agent will not engage in any transactions that stabilizes our Class A common stock while the offering pursuant to this prospectus supplement
and the accompanying prospectus is ongoing.
The
Sales Agent and/or its affiliates have provided, and may in the future provide, various investment banking and other financial services
for us for which services they have received and, may in the future receive, customary fees. In the course of its business, the Sales
Agent may trade our securities for its own account or for the accounts of customers, and, accordingly, the Sales Agent may at any time
hold long or short positions in such securities.
This
prospectus supplement and the accompanying prospectus in electronic format may be made available on a website maintained by the Sales
Agent, and the Sales Agent may distribute this prospectus supplement and the accompanying prospectus electronically.
Our
Class A common stock is listed on the Nasdaq Capital Market and trades under the symbol “SNAX.” The transfer agent of our
Class A common stock is Continental Stock Transfer & Trust Company.
LEGAL
MATTERS
The
validity of the shares of our common stock being offered hereby will be passed upon for us by Foley & Lardner LLP, Jacksonville,
Florida. Ellenoff Grossman & Schole LLP, New York, New York, is counsel for Craig-Hallum Capital Group LLC in connection with
this offering.
EXPERTS
The
audited financial statements incorporated by reference in this prospectus and elsewhere in the registration statement have been so incorporated
by reference in reliance on the report of Marcum LLP, independent registered public accountants, upon the authority of said firm as experts
in accounting and auditing.
WHERE
YOU CAN FIND ADDITIONAL INFORMATION
We
have filed with the SEC a registration statement on Form S-3 under the Securities Act relating to securities offered by this prospectus
supplement. This prospectus supplement, which constitutes a part of the registration statement, does not contain all of the information
set forth in the registration statement or the exhibits thereto. For more information regarding us and the securities offered by this
prospectus supplement, we refer you to the full registration statement, including the exhibits filed therewith. This prospectus summarizes
certain provisions of certain contracts and other documents filed as exhibits to which we refer you. Because the summaries may not contain
all of the information that you may find important, you should review the full text of those documents.
You
may access our SEC filings, including this registration statement, at the SEC’s website at www.sec.gov. We are subject to the information
reporting requirements of the Exchange Act and file reports, proxy statements, and other information with the SEC. These reports, proxy
statements and other information will be available for review at the SEC’s website referred to above. We also maintain a website
at www.stryve.com, at which you may access these materials free of charge as soon as reasonably practicable after they are electronically
filed with, or furnished to, the SEC. Information contained on, or that can be accessed through, our website does not constitute part
of this prospectus, and the inclusion of our website address in this prospectus is an inactive textual reference only.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The
SEC allows us to “incorporate by reference” information into this prospectus supplement, which means that we can disclose
important information about us by referring to another document filed separately with the SEC. The information incorporated by reference
is considered to be a part of this prospectus supplement. This prospectus supplement incorporates by reference the documents and reports
listed below other than portions of these documents that are furnished under Item 2.02 or Item 7.01 of a current report on Form 8–K:
| ● | our
annual report on Form
10–K for the fiscal year ended December 31, 2022, filed with the SEC on April 17,
2023; |
| ● | our
quarterly report on Form
10–Q for the three months ended March 31, 2023, filed with the SEC on May 15, 2023; |
| ● | the
description of the common stock contained in our registration statement on Form
8-A (File No. 001-38785), filed with the SEC on January 23, 2019, pursuant to Section
12 of the Exchange Act, as updated by Exhibit
4.5 of our annual report on Form 10-K for the fiscal year ended December 31, 2022, filed
on April 17, 2023. |
In
addition, all documents subsequently filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, shall be deemed
to be incorporated by reference in this prospectus and to be a part hereof from the date of filing of such documents. In addition, all
reports and other documents filed by us pursuant to the Exchange Act after the date of the initial registration statement and prior to
effectiveness of the registration statement shall be deemed to be incorporated by reference into this prospectus. Any statement contained
in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes
of this prospectus to the extent that a statement contained herein or in any subsequently filed document that also is or is deemed to
be incorporated by reference herein, as the case may be, modifies or supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
Copies
of the documents incorporated herein by reference may be obtained on our website at www.stryve.com. The information on our website is
not incorporated by reference into this prospectus. These documents are also available on the SEC’s website at http://www.sec.gov.
We
will provide, without charge, to any person, including any beneficial owner, to whom a copy of this prospectus is delivered, upon oral
or written request of such person, a copy of any or all of the documents that have been incorporated by reference in this prospectus
but not delivered with the prospectus, including any exhibits to such documents that are specifically incorporated by reference in those
documents.
Please
make your request by writing or telephoning us at the following address or telephone number:
Stryve
Foods, Inc.
Post
Office Box 864
Frisco,
TX 75034
Telephone:
(972) 987-5130
DISCLOSURE
OF COMMISSION POSITION ON INDEMNIFICATION
Insofar
as indemnification for liabilities arising under the Securities Act, as amended, may be permitted to directors, officers, and controlling
persons of the registrant pursuant to the Company’s constituent documents, or otherwise, the registrant has been advised that in
the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer, or controlling person in the successful defense of any action, suit, or proceeding) is asserted by such
director, officer, or controlling person connected with the securities being registered, we will, unless in the opinion of our counsel
the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
ITEM
14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The
following table sets forth the expenses, other than underwriting discounts and commissions, payable by us in connection with the sale
of the securities being registered hereby are currently anticipated as follows (all amounts are estimated except the SEC registration
fee):
| |
| Amount
to
be
paid | |
SEC Registration Fee | |
$ | 2,204 | |
Accounting Fees and Expenses | |
| * | |
Legal Fees and Expenses | |
| * | |
Miscellaneous Expenses (including any applicable
listing fees, printing fees, and transfer agent fees and expenses) | |
| * | |
Total | |
$ | * | |
|
* |
These
fees and expenses depend on the securities offered and the number of issuances, and accordingly cannot be estimated at this time
and will be reflected in the applicable prospectus supplement. |
ITEM
15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Subsection
(a) of Section 145 of the General Corporation Law of the State of Delaware (the “DGCL”) empowers a corporation to indemnify
any person who was or is a party or who is threatened to be made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the
fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred
by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably
believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had
no reasonable cause to believe the person’s conduct was unlawful.
Subsection
(b) of Section 145 empowers a corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that
the person acted in any of the capacities set forth above, against expenses (including attorneys’ fees) actually and reasonably
incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a
manner the person reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification
shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled
to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
Section
145 further provides that to the extent a director or officer of a corporation has been successful on the merits or otherwise in the
defense of any action, suit or proceeding referred to in subsections (a) and (b) of Section 145, or in defense of any claim, issue or
matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred
by such person in connection therewith; that indemnification provided for by Section 145 shall not be deemed exclusive of any other rights
to which the indemnified party may be entitled; and the indemnification provided for by Section 145 shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the
benefit of such person’s heirs, executors and administrators. Section 145 also empowers the corporation to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of his
status as such, whether or not the corporation would have the power to indemnify such person against such liabilities under Section 145.
Section
102(b)(7) of the DGCL provides that a corporation’s certificate of incorporation may contain a provision eliminating or limiting
the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director,
provided that such provision shall not eliminate or limit the liability of a director (i) for any breach of the director’s duty
of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which the director derived an improper
personal benefit.
Additionally,
our Amended and Restated Certificate of Incorporation limits the liability of our directors to the fullest extent permitted by the DGCL,
and our bylaws provide that we will indemnify them to the fullest extent permitted by such law. We have also entered into and expect
to continue to enter into agreements to indemnify our directors, executive officers and other employees as determined by our Board of
Directors. Each indemnification agreement provides for indemnification and advancement by the Company of certain expenses and costs relating
to claims, suits or proceedings arising from service to the Company or, at its request, service to other entities, as officers or directors
to the maximum extent permitted by applicable law.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the
Company pursuant to the foregoing provisions, the Company has been informed that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
ITEM
16. EXHIBITS
*
If required, to be filed by amendment or under subsequent Current Report on Form 8-K.
ITEM
17. UNDERTAKINGS
(a) |
The
undersigned registrant hereby undertakes: |
|
(1) |
To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
|
(i) |
To
include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; |
|
(ii) |
To
reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end
of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and |
|
(iii) |
To
include any material information with respect to the plan of distribution not previously disclosed in this registration statement
or any material change to such information in this registration statement; |
provided,
however, that paragraphs (i), (ii) and (iii) do not apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form
of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
|
(2) |
That,
for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof. |
|
(3) |
To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering. |
|
(5) |
That,
for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
|
(i) |
If
the registrant is relying on Rule 430B: |
|
A. |
Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration statement; and |
|
B. |
Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule
430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required
by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the
earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities
in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is
at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities
in the registration statement to which the prospectus relates, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof; provided, however, that no statement made in a registration statement or prospectus
that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration
statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior
to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part
of the registration statement or made in any such document immediately prior to such effective date. |
|
(ii) |
If
the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating
to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A,
shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided,
however, that no statement made in a registration statement or prospectus that is part of the registration statement or made
in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement
that was made in the registration statement or prospectus that was part of the registration statement or made in any such document
immediately prior to such date of first use. |
|
(6) |
That,
for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution
of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant
to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller
to the purchaser and will be considered to offer or sell such securities to such purchaser: |
|
(i) |
Any
preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule
424; |
|
(ii) |
Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by
the undersigned registrant; |
|
(iii) |
The
portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and |
|
(iv) |
Any
other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
|
(b) |
The
undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing
of its annual reports pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
|
(h) |
Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion
of the Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction
the question as to whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will
be governed by the final adjudication of such issue. |
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized in the City of Plano, Texas, on this June 30, 2023.
|
STRYVE FOODS, INC. |
|
|
|
|
By: |
/s/
Christopher Boever |
|
Name: |
Christopher Boever |
|
Title: |
Chief Executive Officer |
POWER
OF ATTORNEY
KNOW
ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Christopher Boever and Norma Garcia
his true and lawful attorney-in-fact, with full power of substitution and resubstitution for him and in his name, place and stead, in
any and all capacities to sign any and all amendments including post-effective amendments to this registration statement, and to file
the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming all that said attorney-in-fact or his substitute, each acting alone, may lawfully do or cause to be done by
virtue thereof.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons, in the capacities
and on the dates indicated.
Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/
Christopher Boever |
|
Chief
Executive Officer and Director |
|
|
Christopher
Boever |
|
(Principal
Executive Officer) |
|
June
30, 2023 |
|
|
|
|
|
/s/
R. Alex Hawkins |
|
Chief
Financial Officer |
|
|
R.
Alex Hawkins |
|
(Principal
Financial and Accounting Officer) |
|
June
30, 2023 |
|
|
|
|
|
/s/
B. Luke Weil |
|
|
|
|
B.
Luke Weil |
|
Director |
|
June
30, 2023 |
|
|
|
|
|
/s/
Kevin Vivian |
|
|
|
|
Kevin
Vivian |
|
Director |
|
June
30, 2023 |
|
|
|
|
|
/s/
Robert Ramsey |
|
|
|
|
Robert
Ramsey |
|
Director |
|
June
30, 2023 |
|
|
|
|
|
/s/
Ted Casey |
|
|
|
|
Ted
Casey |
|
Director |
|
June
30, 2023 |
|
|
|
|
|
/s/
Mauricio Orellana |
|
|
|
|
Mauricio
Orellana |
|
Director |
|
June
30, 2023 |
|
|
|
|
|
/s/
Chris Whitehair |
|
|
|
|
Chris
Whitehair |
|
Director |
|
June
30, 2023 |
|
|
|
|
|
/s/
Gregory S. Christenson |
|
|
|
|
Gregory
S. Christenson |
|
Director |
|
June
30, 2023 |
Exhibit
1.2
AT
THE MARKET OFFERING AGREEMENT
Craig-Hallum
Capital Group LLC
222
South 9th Street, Suite 350
Minneapolis,
MN 55402
Ladies
and Gentlemen:
Stryve
Foods, Inc., a corporation organized under the laws of Delaware (the “Company”), confirms its agreement (this “Agreement”)
with Craig-Hallum Capital Group LLC (the “Manager”) as follows:
1.
Definitions. The terms that follow, when used in this Agreement and any Terms Agreement, shall have the meanings indicated.
“Accountants”
shall have the meaning ascribed to such term in Section 4(m).
“Act”
shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Action”
shall have the meaning ascribed to such term in Section 3(p).
“Affiliate”
shall have the meaning ascribed to such term in Section 3(o).
“Applicable
Time” shall mean, with respect to any Shares, the time of sale of such Shares pursuant to this Agreement or any relevant Terms
Agreement.
“Base
Prospectus” shall mean the base prospectus contained in the Registration Statement at the Effective Time.
“Board”
shall have the meaning ascribed to such term in Section 2(b)(iii).
“Broker
Fee” shall have the meaning ascribed to such term in Section 2(b)(v).
“Business
Day” shall mean any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, that, for purposes of clarity, commercial banks shall not be deemed
to be authorized or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential
employee” or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental
authority so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York
generally are open for use by customers on such day.
“Commission”
shall mean the United States Securities and Exchange Commission.
“Common
Stock” shall have the meaning ascribed to such term in Section 2.
“Common
Stock Equivalents” shall have the meaning ascribed to such term in Section 3(g).
“Company
Counsel” shall have the meaning ascribed to such term in Section 4(l).
“DTC”
shall have the meaning ascribed to such term in Section 2(b)(vii).
“Effective
Date” shall mean each date and time that the Registration Statement and any post-effective amendment or amendments thereto
became or becomes effective.
“Effective
Time” shall mean the first date and time that the Registration Statement becomes effective.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated
thereunder.
“Execution
Time” shall mean the date and time that this Agreement is executed and delivered by the parties hereto.
“Free
Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.
“GAAP”
shall have the meaning ascribed to such term in Section 3(m).
“Incorporated
Documents” shall mean the documents or portions thereof filed with the Commission on or prior to the Effective Date that are
incorporated by reference in the Registration Statement or the Prospectus and any documents or portions thereof filed with the Commission
after the Effective Date that are deemed to be incorporated by reference in the Registration Statement or the Prospectus.
“Intellectual
Property Rights” shall have the meaning ascribed to such term in Section 3(v).
“Issuer
Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in Rule 433.
“Losses”
shall have the meaning ascribed to such term in Section 7(d).
“Material
Adverse Effect” shall have the meaning ascribed to such term in Section 3(b).
“Material
Permits” shall have the meaning ascribed to such term in Section 3(t).
“Net
Proceeds” shall have the meaning ascribed to such term in Section 2(b)(v).
“Permitted
Free Writing Prospectus” shall have the meaning ascribed to such term in Section 4(g).
“Placement”
shall have the meaning ascribed to such term in Section 2(c).
“Proceeding”
shall have the meaning ascribed to such term in Section 3(b).
“Prospectus”
shall mean the Base Prospectus, as supplemented by the Prospectus Supplement in the Registration Statement at the Effective Time and
any subsequently filed Prospectus Supplement.
“Prospectus
Supplement” shall mean the prospectus supplement relating to the Shares contained in the Registration Statement at the Effective
Time and any other prospectus supplement relating to the Shares prepared and filed pursuant to Rule 424(b) from time to time.
“Registration
Statement” shall mean the shelf registration statement on Form S-3 registering $20 million of securities of the Company
to be filed on or about the Execution Date, including exhibits and financial statements and any prospectus supplement relating to the
Shares that is filed with the Commission pursuant to Rule 424(b) and deemed part of such registration statement pursuant to Rule 430B,
as amended on each Effective Date and, in the event any post-effective amendment thereto becomes effective, shall also mean such registration
statement as so amended.
“Representation
Date” shall have the meaning ascribed to such term in Section 4(k).
“Required
Approvals” shall have the meaning ascribed to such term in Section 3(e).
“Rule
158”, “Rule 164”, “Rule 172”, “Rule 173”, “Rule 405”,
“Rule 415”, “Rule 424”, “Rule 430B” and “Rule 433” refer
to such rules under the Act.
“Sales
Notice” shall have the meaning ascribed to such term in Section 2(b)(i).
“SEC
Reports” shall have the meaning ascribed to such term in Section 3(m).
“Settlement
Date” shall have the meaning ascribed to such term in Section 2(b)(vii).
“Subsidiary”
shall have the meaning ascribed to such term in Section 3(a).
“Terms
Agreement” shall have the meaning ascribed to such term in Section 2(a).
“Time
of Delivery” shall have the meaning ascribed to such term in Section 2(c).
“Trading
Day” means a day on which the Trading Market is open for trading.
“Trading
Market” means The Nasdaq Capital Market.
2.
Sale and Delivery of Shares. The Company proposes to issue and sell through or to the Manager, as sales agent and/or principal,
from time to time during the term of this Agreement and on the terms set forth herein, up to the lesser of such number of shares (the
“Shares”) of the Company’s Class A common stock, $0.0001 par value per share (“Common Stock”),
that does not exceed (a) the number or dollar amount of shares of Common Stock registered on the Prospectus Supplement, pursuant to which
the offering is being made, (b) the number of authorized but unissued shares of Common Stock (less the number of shares of Common Stock
issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s
authorized capital stock), or (c) the number or dollar amount of shares of Common Stock that would cause the Company or the offering
of the Shares to not satisfy the eligibility and transaction requirements for use of Form S-3, including, if applicable, General Instruction
I.B.6 of Registration Statement on Form S-3 (the lesser of (a), (b) and (c), the “Maximum Amount”). Notwithstanding
anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 2
on the number and aggregate sales price of Shares issued and sold under this Agreement shall be the sole responsibility of the Company
and that the Manager shall have no obligation in connection with such compliance.
(a)
Appointment of Manager as Selling Agent; Terms Agreement. For purposes of selling the Shares through the Manager, the Company
hereby appoints the Manager as exclusive agent of the Company for the purpose of selling the Shares of the Company pursuant to this Agreement
and the Manager agrees to use its commercially reasonable efforts to sell the Shares on the terms and subject to the conditions stated
herein. The Company agrees that, whenever it determines to sell the Shares directly to the Manager as principal, it will enter into a
separate agreement (each, a “Terms Agreement”) in substantially the form of Annex I hereto, relating to such
sale in accordance with Section 2 of this Agreement.
(b)
Agent Sales. Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, following
the effectiveness of the Registration Statement, the Company will issue and agrees to sell Shares from time to time through the Manager,
acting as sales agent, and the Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, on
the following terms:
(i)
The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Manager on any day that (A) is a
Trading Day, (B) the Company has instructed the Manager by telephone (confirmed promptly by electronic mail) to make such sales (“Sales
Notice”) and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the
maximum amount of the Shares to be sold by the Manager daily (subject to the limitations set forth in Section 2(d)) and the minimum price
per Share at which such Shares may be sold. Subject to the terms and conditions hereof, the Manager shall use its commercially reasonable
efforts to sell on a particular day all of the Shares designated for the sale by the Company on such day. The gross sales price of the
Shares sold under this Section 2(b) shall be the market price for the shares of Common Stock sold by the Manager under this Section 2(b)
on the Trading Market at the time of sale of such Shares.
(ii)
The Company acknowledges and agrees that (A) there can be no assurance that the Manager will be successful in selling the Shares, (B)
the Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell the Shares for any
reason other than a failure by the Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices
and applicable law and regulations to sell such Shares as required under this Agreement, and (C) the Manager shall be under no obligation
to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company
pursuant to a Terms Agreement.
(iii)
The Company shall not authorize the issuance and sale of, and the Manager shall not be obligated to use its commercially reasonable efforts
to sell, any Share at a price lower than the minimum price therefor designated from time to time by the Company’s Board of Directors
(the “Board”), or a duly authorized committee thereof, or such duly authorized officers of the Company, and notified
to the Manager in writing. The Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by
electronic mail), suspend the offering of the Shares for any reason and at any time; provided, however, that such suspension
or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to
the giving of such notice.
(iv)
The Manager may sell Shares by any method permitted by law deemed to be an “at the market offering” as defined in Rule 415
under the Act, including without limitation sales made directly on the Trading Market, on any other existing trading market for the Common
Stock or to or through a market maker. The Manager may also sell Shares in privately negotiated transactions, provided that the Manager
receives the Company’s prior written approval for any sales in privately negotiated transactions and if so provided in the “Plan
of Distribution” section of the Prospectus Supplement or a supplement to the Prospectus Supplement or a new Prospectus Supplement
disclosing the terms of such privately negotiated transaction.
(v)
The compensation to the Manager for sales of the Shares under this Section 2(b) shall be a placement fee of 3.0% of the gross sales price
of the Shares sold pursuant to this Section 2(b) (“Broker Fee”). The foregoing rate of compensation shall not apply
when the Manager acts as principal, in which case the Company may sell Shares to the Manager as principal at a price agreed upon at the
relevant Applicable Time pursuant to a Terms Agreement. The remaining proceeds, after deduction of the Broker Fee and deduction of any
transaction fees imposed by any clearing firm, execution broker, or governmental or self-regulatory organization in respect of such sales,
shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(vi)
The Manager shall provide written confirmation (which may be by electronic mail) to the Company following the close of trading on the
Trading Market each day in which the Shares are sold under this Section 2(b) setting forth the number of the Shares sold on such day,
the aggregate gross sales proceeds and the Net Proceeds to the Company, and the compensation payable by the Company to the Manager with
respect to such sales.
(vii)
Unless otherwise agreed between the Company and the Manager, settlement for sales of the Shares will occur at 10:00 a.m. (New York City
time) on the second (2nd) Trading Day (and on and after May 28, 2024, on the first (1st) Trading Day, or any such shorter settlement
cycle as may be in effect pursuant to Rule 15c6-1 under the Exchange Act from time to time) following the date on which such sales are
made (each, a “Settlement Date”). On or before the Trading Day prior to each Settlement Date, the Company will, or
will cause its transfer agent to, electronically transfer the Shares being sold by crediting the Manager’s or its designee’s
account (provided that the Manager shall have given the Company written notice of such designee at least one Trading Day prior to the
Settlement Date) at The Depository Trust Company (“DTC”) through its Deposit and Withdrawal at Custodian System or
by such other means of delivery as may be mutually agreed upon by the parties hereto which Shares in all cases shall be freely tradable,
transferable, registered shares in good deliverable form. On each Settlement Date, the Manager will deliver the related Net Proceeds
in same day funds to an account designated by the Company. The Company agrees that, if the Company, or its transfer agent (if applicable),
defaults in its obligation to deliver duly authorized Shares on a Settlement Date, in addition to and in no way limiting the rights and
obligations set forth in Section 7 hereto, the Company will (i) hold the Manager harmless against any loss, claim, damage, or reasonable,
documented expense (including reasonable and documented legal fees and expenses), as incurred, arising out of or in connection with such
default by the Company, and (ii) pay to the Manager any commission, discount or other compensation to which the Manager would otherwise
have been entitled absent such default.
(viii) At each Applicable
Time, Settlement Date, and Representation Date, the Company shall be deemed to have affirmed each representation and warranty contained
in this Agreement as if such representation and warranty were made as of such date, modified as necessary to relate to the Registration
Statement and the Prospectus as amended as of such date. Any obligation of the Manager to use its commercially reasonable efforts to sell
the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein,
to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified
in Section 6 of this Agreement.
(ix) Notwithstanding
any other provision of this Agreement, during any period in which the Company is in possession of material non-public information, the
Company and the Manager agree that (i) no sales of Shares will take place, (ii) the Company shall not request the sale of any Shares,
and (iii) the Manager shall not be obligated to sell or offer to sell any Shares.
(x) If the Company
shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of shares of Common
Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities,
property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar
transaction) (a “Distribution” and the record date for the determination of stockholders entitled to receive the Distribution,
the “Record Date”), the Company hereby covenants that, in connection with any sales of Shares pursuant to a Sales
Notice on the Record Date, the Company shall issue and deliver such Shares to the Manager on the Record Date and the Record Date shall
be the Settlement Date and the Company shall cover any additional costs of the Manager in connection with the delivery of Shares on the
Record Date.
(c)
Term Sales. If the Company wishes to sell the Shares pursuant to this Agreement in a manner other than as set forth in Section
2(b) of this Agreement (each, a “Placement”), the Company will notify the Manager of the proposed terms of such Placement.
If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion)
or, following discussions with the Company wishes to accept amended terms, the Manager and the Company will enter into a Terms Agreement
setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding on the Company or the Manager
unless and until the Company and the Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement.
In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement
will control. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment
of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations
and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement
shall specify the number of the Shares to be purchased by the Manager pursuant thereto, the price to be paid to the Company for such
Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the
Shares, and the time and date (each such time and date being referred to herein as a “Time of Delivery”) and place
of delivery of and payment for such Shares. Such Terms Agreement shall also specify any requirements for opinions of counsel, accountants’
letters and officers’ certificates pursuant to Section 6 of this Agreement and any other information or documents required by the
Manager.
(d)
Maximum Number of Shares. Under no circumstances shall the Company cause or request the offer or sale of any Shares if, after
giving effect to the sale of such Shares, the aggregate amount of Shares sold pursuant to this Agreement would exceed the lesser of (A)
together with all sales of Shares under this Agreement, the Maximum Amount, (B) the amount available for offer and sale under the currently
effective Registration Statement and (C) the amount authorized from time to time to be issued and sold under this Agreement by the Board,
a duly authorized committee thereof or a duly authorized executive officer of the Company, and notified to the Manager in writing. Under
no circumstances shall the Company cause or request the offer or sale of any Shares pursuant to this Agreement at a price lower than
the minimum price authorized from time to time by the Board, a duly authorized committee thereof or a duly authorized executive officer,
and notified to the Manager in writing. Further, under no circumstances shall the Company cause or permit the aggregate offering amount
of Shares sold pursuant to this Agreement to exceed the Maximum Amount.
(e)
Regulation M Notice. Unless the exceptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are satisfied
with respect to the Shares, the Company shall give the Manager at least one (1) Business Day’s prior notice of its intent to sell
any Shares in order to allow the Manager time to comply with Regulation M.
3.
Representations and Warranties. The Company represents and warrants to, and agrees with, the Manager at the Execution Time and
Effective Time and on each such time that the following representations and warranties are repeated or deemed to be made pursuant to
this Agreement, as set forth below, except as set forth in the Registration Statement, the Prospectus, the Incorporated Documents or
the SEC Reports.
(a)
Subsidiaries. All of the direct and indirect significant subsidiaries (individually, a “Subsidiary”) of the
Company are set forth on Exhibit 21.1 to the Company’s most recent Annual Report on Form 10-K filed with the Commission. The Company
owns, directly or indirectly, all of the capital stock or other equity interests of each Subsidiary free and clear of any “Liens”
(which for purposes of this Agreement shall mean a lien, charge, security interest, encumbrance, right of first refusal, preemptive right
or other restriction), and all of the issued and outstanding shares of capital stock of each Subsidiary are validly issued and are fully
paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase securities.
(b)
Organization and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized,
validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power
and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any
Subsidiary is in violation or in default of any of the provisions of its respective certificate or articles of incorporation, bylaws
or other organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified to conduct business and is in
good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property
owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be,
would not reasonably be expected to result in: (i) a material adverse effect on the legality, validity or enforceability of this Agreement,
(ii) a material adverse effect on the results of operations, assets, business or condition (financial or otherwise) of the Company and
the Subsidiaries, taken as a whole, from that set forth in the Registration Statement, the Base Prospectus, any Prospectus Supplement,
the Prospectus or the Incorporated Documents, or (iii) a material adverse effect on the Company’s ability to perform in any material
respect on a timely basis its obligations under this Agreement (any of (i), (ii) or (iii), a “Material Adverse Effect”)
and no “Proceeding” (which for purposes of this Agreement shall mean any action, claim, suit, investigation or proceeding
(including, without limitation, an informal investigation or partial proceeding, such as a deposition), whether commenced or, to the
knowledge of the Company, threatened) has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke,
limit or curtail such power and authority or qualification.
(c)
Authorization and Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the
transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder. The execution and delivery of this
Agreement by the Company and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary
action on the part of the Company and no further action is required by the Company, the Board or the Company’s stockholders in
connection herewith other than in connection with the Required Approvals. This Agreement has been duly executed and delivered by the
Company and, when delivered in accordance with the terms hereof, will constitute the valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as
limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar
as indemnification and contribution provisions may be limited by applicable law.
(d)
No Conflicts. The execution, delivery and performance by the Company of this Agreement, the issuance and sale of the Shares and
the consummation by it of the transactions contemplated hereby do not and will not (i) conflict with or violate any provision of the
Company’s or any Subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter documents,
or (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under,
result in the creation of any Lien upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights
of termination, amendment, anti-dilution or similar adjustments, acceleration or cancellation (with or without notice, lapse of time
or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other
understanding to which the Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary is
bound or affected, or (iii) subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation, order,
judgment, injunction, decree or other restriction of any court or governmental authority to which the Company or a Subsidiary is subject
(including federal and state securities laws and regulations), or by which any property or asset of the Company or a Subsidiary is bound
or affected; except in the case of each of clauses (ii) and (iii), such as would not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect.
(e)
Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any
notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority or other
“Person” (defined as an individual or corporation, partnership, trust, incorporated or unincorporated association, joint
venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind,
including the Trading Market) in connection with the execution, delivery and performance by the Company of this Agreement, other than
(i) the filings required by this Agreement, (ii) the filing with the Commission of the Prospectus Supplement, (iii) the filing of notice
with the Trading Market for the listing of the Shares for trading thereon in the time and manner required thereby, and (iv) such filings
as are required to be made under applicable state securities laws and the rules and regulations of the Financial Industry Regulatory
Authority, Inc. (“FINRA”) (collectively, the “Required Approvals”).
(f)
Issuance of Shares. The Shares are duly authorized and, when issued and paid for in accordance with this Agreement, will be duly
and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company. The Company has reserved from its
duly authorized capital stock the maximum number of shares of Common Stock issuable pursuant to this Agreement. The issuance by the Company
of the Shares has been registered under the Act and all of the Shares are freely transferable and tradable by the purchasers thereof
without restriction (other than any restrictions arising solely from an act or omission of such a purchaser). The Shares are being issued
pursuant to the Registration Statement. The “Plan of Distribution” section within the Registration Statement permits
the issuance and sale of the Shares as contemplated by this Agreement. Upon receipt of the Shares, the purchasers of such Shares will
have good and marketable title to such Shares and the Shares will be freely tradable on the Trading Market.
(g)
Capitalization. The capitalization of the Company is as set forth in the SEC Reports. The Company has not issued any capital stock
since its most recently filed periodic report under the Exchange Act, other than pursuant to the exercise of employee stock options under
the Company’s equity incentive plans, the issuance of shares of Common Stock to employees pursuant to the Company’s equity
incentive plans and pursuant to the conversion and/or exercise of securities exercisable, exchangeable or convertible into Common Stock
(“Common Stock Equivalents”) outstanding as of the date of the most recently filed periodic report under the Exchange
Act. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions
contemplated by this Agreement. Except as set forth in the SEC Reports, there are no outstanding options, warrants, scrip rights to subscribe
to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible into or exercisable
or exchangeable for, or giving any Person any right to subscribe for or acquire, any shares of Common Stock or the capital stock of any
Subsidiary, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to
issue additional shares of Common Stock or Common Stock Equivalents or capital stock of any Subsidiary. The issuance and sale of the
Shares will not obligate the Company or any Subsidiary to issue shares of Common Stock or other securities to any Person. There are no
outstanding securities or instruments of the Company or any Subsidiary with any provision that adjusts the exercise, conversion, exchange
or reset price of such security or instrument upon an issuance of securities by the Company or any Subsidiary. There are no outstanding
securities or instruments of the Company or any Subsidiary that contain any redemption or similar provisions, and there are no contracts,
commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to redeem a security of the
Company or such Subsidiary. The Company does not have any stock appreciation rights or “phantom stock” plans or agreements
or any similar plan or agreement. All of the outstanding shares of capital stock of the Company are duly authorized, validly issued,
fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, and none of such outstanding
shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. No further approval
or authorization of any stockholder, the Board or others is required for the issuance and sale of the Shares. Except as set forth in
the SEC Reports, there are no stockholders agreements, voting agreements or other similar agreements with respect to the Company’s
capital stock to which the Company is a party or, to the knowledge of the Company, between or among any of the Company’s stockholders.
(h)
Registration Statement. The Company will meet the requirements for use of Form S-3 under the Act at the time that the Registration
Statement is filed and has prepared and filed with the Commission the Registration Statement, including a related Base Prospectus, for
registration under the Act of the offering and sale of the Shares. After the Effective Time, such Registration Statement will be effective
and available for the offer and sale of the Shares as of the date hereof. As filed, the Base Prospectus contains all information required
by the Act and the rules thereunder, and, except to the extent the Manager shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to the Manager prior to the Execution Time or prior to any such time this representation is
repeated or deemed to be made. The Registration Statement, at the Execution Time, each such time this representation is repeated or deemed
to be made, and at all times during which a prospectus is required by the Act to be delivered (whether physically or through compliance
with Rule 172, 173 or any similar rule) in connection with any offer or sale of the Shares, meets the requirements set forth in Rule
415(a)(1)(x). The Company meets the transaction requirements as set forth in General Instruction I.B.1 of Form S-3 or, if applicable,
as set forth in General Instruction I.B.6 of Form S-3 with respect to the aggregate market value of securities being sold pursuant to
this offering and during the twelve (12) months prior to this offering.
(i)
Accuracy of Incorporated Documents. The Incorporated Documents, when they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act and the rules thereunder, and none of the Incorporated Documents, when they were filed
with the Commission, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made not misleading; and any further documents so filed and incorporated
by reference in the Registration Statement, the Base Prospectus, the Prospectus Supplement or the Prospectus, when such documents are
filed with the Commission, will conform in all material respects to the requirements of the Exchange Act and the rules thereunder, as
applicable, and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading.
(j)
[RESERVED]
(k)
[RESERVED]
(l)
Proceedings Related to Registration Statement. The Registration Statement is not the subject of a pending proceeding or examination
under Section 8(d) or 8(e) of the Act, and the Company is not the subject of a pending proceeding under Section 8A of the Act in connection
with the offering of the Shares. The Company has not received any notice that the Commission has issued or intends to issue a stop-order
with respect to the Registration Statement or that the Commission otherwise has suspended or withdrawn the effectiveness of the Registration
Statement, either temporarily or permanently, or intends or has threatened in writing to do so.
(m)
SEC Reports. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company
under the Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the twelve (12) months preceding the date
hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials, including
the exhibits thereto and documents incorporated by reference therein, together with the Prospectus and the Prospectus Supplement, being
collectively referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension of such
time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, the SEC
Reports complied in all material respects with the requirements of the Act and the Exchange Act, as applicable, and none of the SEC Reports,
when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The financial
statements of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the
rules and regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements have been
prepared in accordance with United States generally accepted accounting principles applied on a consistent basis during the periods involved
(“GAAP”) in all material respects, except as may be otherwise specified in such financial statements or the notes
thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material
respects the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof and the results of operations
and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments.
(n)
[RESERVED]
(o)
Material Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included
within the SEC Reports, except as specifically disclosed in a subsequent SEC Report filed prior to the date on which this representation
is being made, (i) there has been no event, occurrence or development that has had or that could reasonably be expected to result in
a Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A) trade payables
and accrued expenses incurred in the ordinary course of business consistent with past practice and (B) liabilities not required to be
reflected in the Company’s financial statements pursuant to GAAP or disclosed in filings made with the Commission, (iii) the Company
has not altered its method of accounting, (iv) the Company has not declared or made any dividend or distribution of cash or other property
to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock, (v) the Company
has not issued any equity securities to any officer, director or “Affiliate” (defined as any Person that, directly
or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms
are used in and construed under Rule 144 under the Act), except pursuant to existing Company equity incentive plans, and (vi) no executive
officer of the Company or member of the Board has resigned from any position with the Company. The Company does not have pending before
the Commission any request for confidential treatment of information. Except for the issuance of the Shares contemplated by this Agreement,
no event, liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist
with respect to the Company or its Subsidiaries or their respective businesses, properties, operations, assets or financial condition
that would be required to be disclosed by the Company under applicable securities laws at the time this representation is made or deemed
made that has not been publicly disclosed at least one (1) Trading Day prior to the date that this representation is made.
(p)
Litigation. Except as set forth in the SEC Reports, there is no action, suit, inquiry, notice of violation, proceeding or investigation
pending or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties
before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign)
(collectively, an “Action”), except where such Action would not, individually or in the aggregate, have or reasonably
be expected to result in a Material Adverse Effect. None of the Actions set forth in the SEC Reports, (i) adversely affects or challenges
the legality, validity or enforceability of this Agreement or the Shares or (ii) would, if there were an unfavorable decision, have or
reasonably be expected to result in a Material Adverse Effect. Neither the Company nor any Subsidiary, nor any director or officer thereof,
is or has been the subject of any Action involving a claim of violation of or liability under federal or state securities laws or a claim
of breach of fiduciary duty, except where such Action would not, individually or in the aggregate, have or reasonably be expected to
result in a Material Adverse Effect. There has not been, and to the knowledge of the Company, there is not pending or contemplated, any
investigation by the Commission involving the Company or any current or former director or officer of the Company. The Commission has
not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary
under the Exchange Act or the Act.
(q)
Labor Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees
of the Company, which would reasonably be expected to result in a Material Adverse Effect. To the knowledge of the Company, no executive
officer of the Company or any Subsidiary, is, or is now expected to be, in violation of any material term of any employment contract,
confidentiality, disclosure or proprietary information agreement or non-competition agreement, or any other contract or agreement or
any restrictive covenant in favor of any third party, and the continued employment of each such executive officer does not subject the
Company or any of its Subsidiaries to any liability with respect to any of the foregoing matters. The Company and its Subsidiaries are
in compliance with all applicable U.S. federal, state, local and foreign laws and regulations relating to employment and employment practices,
terms and conditions of employment and wages and hours, except where the failure to be in compliance could not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Effect.
(r)
Compliance. Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred that
has not been waived that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under), nor
has the Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture,
loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound
(whether or not such default or violation has been waived), (ii) is in violation of any judgment, decree or order of any court, arbitrator
or other governmental authority or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any governmental
authority, including without limitation all foreign, federal, state and local laws relating to taxes, environmental protection, occupational
health and safety, product quality and safety and employment and labor matters, except in each case of (i), (ii) and (iii) as would not
reasonably be expected to result in a Material Adverse Effect.
(s)
Environmental Laws. The Company and its Subsidiaries (i) are in compliance with all applicable federal, state, local and foreign
laws relating to pollution or protection of human health or the environment (including ambient air, surface water, groundwater, land
surface or subsurface strata), including laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants,
contaminants, or toxic or hazardous substances or wastes (collectively, “Hazardous Materials”) into the environment,
or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous
Materials, as well as all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments, licenses, notices or notice
letters, orders, permits, plans or regulations, issued, entered, promulgated or approved thereunder (“Environmental Laws”);
(ii) have received all permits licenses or other approvals required of them under applicable Environmental Laws to conduct their respective
businesses; and (iii) are in compliance with all terms and conditions of any such permit, license or approval where in each clause (i),
(ii) and (iii), the failure to so comply would be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
(t)
Regulatory Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the appropriate
federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the SEC Reports,
except where the failure to possess such permits could not reasonably be expected to result in a Material Adverse Effect (“Material
Permits”), and neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation or
modification of any Material Permit.
(u)
Title to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned by them
and good and marketable title in all personal property owned by them that is material to the business of the Company and the Subsidiaries,
in each case free and clear of all Liens, except for (i) Liens as do not materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries and (ii) Liens for the payment
of federal, state or other taxes, for which appropriate reserves have been made therefor in accordance with GAAP and, the payment of
which is neither delinquent nor subject to penalties. Any real property and facilities held under lease by the Company and the Subsidiaries
are held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries are in compliance in all
material respects.
(v)
Intellectual Property. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications, trademarks,
trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property rights
and similar rights necessary or required for use in connection with their respective businesses as described in the SEC Reports (collectively,
the “Intellectual Property Rights”), except where the failure to so have could not, individually or in the aggregate,
have or reasonably be expected to result in a Material Adverse Effect. None of, and neither the Company nor any Subsidiary has received
a notice (written or otherwise) that any of, the material Intellectual Property Rights has expired, terminated or been abandoned, or
is expected to expire or terminate or be abandoned, within two (2) years from the date of this Agreement. Neither the Company nor any
Subsidiary has received, since the date of the latest audited financial statements included within the SEC Reports, a written notice
of a claim or otherwise has any knowledge that the Intellectual Property Rights violate or infringe upon the rights of any Person, except
as would not reasonably be expected to not have a Material Adverse Effect. To the knowledge of the Company, all such Intellectual Property
Rights are enforceable and there is no existing infringement by another Person of any of the Intellectual Property Rights. The Company
and its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality and value of all of their intellectual
properties, except where failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
(w)
Insurance. The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses
and risks and in such amounts as are prudent and customary for companies of a similar size as the Company in the businesses in which
the Company and the Subsidiaries are engaged, including, but not limited to, directors and officers insurance coverage. Neither the Company
nor any Subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be necessary to continue its business without a significant increase
in cost.
(x)
Affiliate Transactions. Except as set forth in the SEC Reports, none of the officers or directors of the Company or any Subsidiary
and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party to any transaction
with the Company or any Subsidiary (other than for services as employees, officers and directors), including any contract, agreement
or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from,
providing for the borrowing of money from or lending of money to or otherwise requiring payments to or from any officer, director or
such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such employee has a substantial
interest or is an officer, director, trustee, stockholder, member or partner, in each case in excess of $120,000 other than for (i) payment
of salary, consulting or directors’ fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company
and (iii) other employee benefits, including awards under any equity incentive plan of the Company.
(y)
Sarbanes Oxley Compliance. The Company and the Subsidiaries are in compliance with any and all applicable requirements of the
Sarbanes-Oxley Act of 2002, as amended, that are effective as of the date hereof, and any and all applicable rules and regulations promulgated
by the Commission thereunder that are effective as of the date hereof. The Company and the Subsidiaries maintain a system of internal
accounting controls and the Company and the Subsidiaries have established disclosure controls and procedures (as defined in Exchange
Act Rules 13a-15(e) and 15d-15(e)) for the Company and the Subsidiaries and designed such disclosure controls and procedures to provide
reasonable assurance that information required to be disclosed by the Company in the reports it files or submits under the Exchange Act
is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms. The Company’s
certifying officers have evaluated the effectiveness of the disclosure controls and procedures of the Company and the Subsidiaries as
of the end of the period covered by the most recently filed periodic report under the Exchange Act (such date, the “Evaluation
Date”). The Company presented in its most recently filed periodic report under the Exchange Act the conclusions of the certifying
officers about the effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation Date. Since
the Evaluation Date, there have been no changes in the internal control over financial reporting (as such term is defined in the Exchange
Act) of the Company and its Subsidiaries that have materially affected, or is reasonably likely to materially affect, the internal control
over financial reporting of the Company and its Subsidiaries.
(z)
Certain Fees. Other than payments to be made to the Manager, no brokerage or finder’s fees or commissions are or will be
payable by the Company or any Subsidiary to any broker, financial advisor or consultant, finder, placement agent, investment banker,
bank or other Person with respect to the transactions contemplated by this Agreement. The Manager shall have no obligation with respect
to any fees or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated in this Section that
may be due in connection with the transactions contemplated by this Agreement.
(aa)
No Other Sales Agency Agreement. The Company has not entered into any other sales agency agreements or other similar arrangements
with any agent or any other representative in respect of at the market offerings of the Shares.
(bb)
[RESERVED]
(cc)
Listing and Maintenance Requirements. The Common Stock is listed on the Trading Market and the issuance of the Shares as contemplated
by this Agreement does not contravene the rules and regulations of the Trading Market. The Common Stock is registered pursuant to Section
12(b) or 12(g) of the Exchange Act, and the Company has taken no action designed to, or which to its knowledge is likely to have the
effect of, terminating the registration of the Common Stock under the Exchange Act nor has the Company received any notification that
the Commission is contemplating terminating such registration. Except as disclosed in the SEC Reports, the Company has not, in the 12
months preceding the date hereof, received notice from any Trading Market on which the Common Stock is or has been listed or quoted to
the effect that the Company is not in compliance with the listing or maintenance requirements of such Trading Market. Except as disclosed
in the SEC Reports, the Company is in compliance with all such listing and maintenance requirements. The Common Stock is currently eligible
for electronic transfer through the Depository Trust Company or another established clearing corporation and the Company is current in
payment of the fees to the Depository Trust Company (or such other established clearing corporation) in connection with such electronic
transfer.
(dd)
Application of Takeover Protections. The Company and the Board have taken all necessary action, if any, in order to render inapplicable
any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar
anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents) or the laws of its state
of incorporation that is or could become applicable to the Shares.
(ee)
Solvency. Based on the consolidated financial condition of the Company as of the date hereof, (i) the fair saleable value of the
Company’s assets exceeds the amount that will be required to be paid on or in respect of the Company’s existing debts and
other liabilities (including known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably
small capital to carry on its business as now conducted and as proposed to be conducted including its capital needs taking into account
the particular capital requirements of the business conducted by the Company, consolidated and projected capital requirements and capital
availability thereof, and (iii) the current cash flow of the Company, together with the proceeds the Company would receive, were it to
liquidate all of its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or
in respect of its liabilities when such amounts are required to be paid. The Company does not intend to incur debts beyond its ability
to pay such debts as they mature (taking into account the timing and amounts of cash to be payable on or in respect of its debt) within
one year from the date hereof. The Company has no knowledge of any facts or circumstances which lead it to believe that it will file
for reorganization or liquidation under the bankruptcy or reorganization laws of any jurisdiction within one year from the date hereof.
The SEC Reports set forth as of the date hereof all outstanding secured and unsecured Indebtedness of the Company or any Subsidiary,
or for which the Company or any Subsidiary has commitments. For the purposes of this Agreement, “Indebtedness” means
(x) any liabilities for borrowed money or amounts owed in excess of $50,000 (other than trade accounts payable incurred in the ordinary
course of business), (y) all guaranties, endorsements and other contingent obligations in respect of indebtedness of others, whether
or not the same are or should be reflected in the Company’s consolidated balance sheet (or the notes thereto), except guaranties
by endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business; and (z)
the present value of any lease payments in excess of $50,000 due under leases required to be capitalized in accordance with GAAP. Neither
the Company nor any Subsidiary is in default with respect to any Indebtedness.
(ff)
Tax Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a
Material Adverse Effect, the Company and its Subsidiaries each (i) has made or filed all United States federal, state and local income
and all foreign income and franchise tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii)
has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such
returns, reports and declarations and (iii) has set aside on its books provision reasonably adequate for the payment of all material
taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid taxes in any material
amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company or of any Subsidiary know of no
basis for any such claim.
(gg)
Foreign Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary, any
agent or other person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful
payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate
funds, (iii) failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any person acting on its behalf
of which the Company is aware) which is in violation of law, or (iv) violated in any material respect any provision of the Foreign Corrupt
Practices Act of 1977, as amended.
(hh)
Accountants. The Company’s accounting firm is set forth in the SEC Reports. To the knowledge and belief of the Company,
such accounting firm (i) is a registered public accounting firm as required by the Exchange Act and (ii) has been engaged by the Company
to express its opinion with respect to the financial statements to be included in the Company’s Annual Report for the fiscal year
ending December 31, 2023.
(ii)
Regulation M Compliance. The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly or indirectly,
any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of any of the Shares, (ii) sold, bid for, purchased, or, paid any compensation for soliciting purchases of, any of
the Shares, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities of
the Company, other than, in the case of clauses (ii) and (iii), compensation paid to the Manager in connection with the Shares.
(jj)
FDA. As to each product subject to the jurisdiction of the U.S. Food and Drug Administration (“FDA”) under
the Federal Food, Drug and Cosmetic Act, as amended, and the regulations thereunder (“FDCA”) that is manufactured,
packaged, labeled, tested, distributed, sold, and/or marketed by the Company or any of its Subsidiaries (each such product, a “Pharmaceutical
Product”), such Pharmaceutical Product is being manufactured, packaged, labeled, tested, distributed, sold and/or marketed
by the Company in compliance with all applicable requirements under FDCA and similar applicable laws, rules and regulations relating
to registration, investigational use, premarket clearance, licensure, or application approval, good manufacturing practices, good laboratory
practices, good clinical practices, product listing, quotas, labeling, advertising, record keeping and filing of reports, except where
the failure to be in compliance would not have a Material Adverse Effect. There is no pending, completed or, to the Company’s knowledge,
threatened, action (including any lawsuit, arbitration, or legal or administrative or regulatory proceeding, charge, complaint, or investigation)
against the Company or any of its Subsidiaries, and none of the Company or any of its Subsidiaries has received any notice, warning letter
or other communication from the FDA or any other governmental entity, which (i) contests the premarket clearance, licensure, registration,
or approval of, the uses of, the distribution of, the manufacturing or packaging of, the testing of, the sale of, or the labeling and
promotion of any Pharmaceutical Product, (ii) withdraws its approval of, requests the recall, suspension, or seizure of, or withdraws
or orders the withdrawal of advertising or sales promotional materials relating to, any Pharmaceutical Product, (iii) imposes a clinical
hold on any clinical investigation by the Company or any of its Subsidiaries, (iv) enjoins production at any facility of the Company
or any of its Subsidiaries, (v) enters or proposes to enter into a consent decree of permanent injunction with the Company or any of
its Subsidiaries, or (vi) otherwise alleges any violation of any laws, rules or regulations by the Company or any of its Subsidiaries,
and which, either individually or in the aggregate, would have a Material Adverse Effect. The properties,
business and operations of the Company have been and are being conducted in all material respects in accordance with all applicable laws,
rules and regulations of the FDA. The Company has not been informed by the FDA that the FDA will prohibit the marketing, sale, license
or use in the United States of any product proposed to be developed, produced or marketed by the Company nor has the FDA expressed any
concern as to approving or clearing for marketing any product being developed or proposed to be developed by the Company.
(kk) Stock Option
Plans. Each stock option granted by the Company under the Company’s equity incentive plan was granted (i) in accordance with
the terms of the Company’s equity incentive plan and (ii) with an exercise price at least equal to the fair market value of the
Common Stock on the date such stock option would be considered granted under GAAP and applicable law. No stock option granted under the
Company’s equity incentive plan has been backdated. The Company has not knowingly granted, and there is no and has been no Company
policy or practice to knowingly grant, stock options prior to, or otherwise knowingly coordinate the grant of stock options with, the
release or other public announcement of material information regarding the Company or its Subsidiaries or their financial results or prospects.
(ll) Cybersecurity.
Except for issues or matters that would not, individually or in the aggregate, have or reasonably be expected to result in a Material
Adverse Effect, (i)(x) There has been no security breach or other compromise of or relating to any of the Company’s or any Subsidiary’s
information technology and computer systems, networks, hardware, software, data (including the data of its respective customers, employees,
suppliers, vendors and any third party data maintained by or on behalf of it), equipment or technology (collectively, “IT Systems
and Data”) and (y) the Company and the Subsidiaries have not been notified of, and have no knowledge of any event or condition
that would reasonably be expected to result in, any security breach or other compromise to its IT Systems and Data; (ii) the Company and
the Subsidiaries are presently in 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 Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation
or modification; (iii) the Company and the Subsidiaries have implemented and maintained commercially reasonable safeguards to maintain
and protect its material confidential information and the integrity, continuous operation, redundancy and security of all IT Systems and
Data; and (iv) the Company and the Subsidiaries have implemented backup and disaster recovery technology consistent with industry standards
and practices.
(mm) Office of Foreign
Assets Control. Neither the Company nor any Subsidiary nor, to the Company’s knowledge, any director, officer, agent, employee
or affiliate of the Company or any Subsidiary is currently subject to any U.S. sanctions administered by the Office of Foreign Assets
Control of the U.S. Treasury Department (“OFAC”).
(nn) U.S. Real Property
Holding Corporation. The Company is not and has never been a U.S. real property holding corporation within the meaning of Section
897 of the Internal Revenue Code of 1986, as amended, and the Company shall so certify upon the Manager’s request.
(oo) Bank Holding
Company Act. Neither the Company nor any of its Subsidiaries is subject to the Bank Holding Company Act of 1956, as amended (the “BHCA”)
and to regulation by the Board of Governors of the Federal Reserve System (the “Federal Reserve”). Neither the Company
nor any of its Subsidiaries owns or controls, directly or indirectly, five percent (5%) or more of the outstanding shares of any class
of voting securities or twenty-five percent (25%) or more of the total equity of a bank or any entity that is subject to the BHCA and
to regulation by the Federal Reserve. Neither the Company nor any of its Subsidiaries exercises a controlling influence over the management
or policies of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve.
(pp) Money Laundering.
The operations of the Company and its Subsidiaries are and have been conducted at all times in material compliance with applicable financial
record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, applicable money
laundering statutes and applicable rules and regulations thereunder (collectively, the “Money Laundering Laws”), and
no Action or Proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any
Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge of the Company or any Subsidiary, threatened.
(qq) FINRA Member
Shareholders. There are no affiliations with any FINRA member firm among the Company’s officers, directors or, to the knowledge
of the Company, any five percent (5%) or greater stockholder of the Company, except as set forth in the Registration Statement, the Base
Prospectus, any Prospectus Supplement or the Prospectus.
4.
Agreements. The Company agrees with the Manager that:
(a) Right to Review
Amendments and Supplements to Registration Statement and Prospectus. During any period when the delivery of a prospectus relating
to the Shares is required (including in circumstances where such requirement may be satisfied pursuant to Rule 172, 173 or any similar
rule) to be delivered under the Act in connection with the offering or the sale of Shares, the Company will not file any amendment to
the Registration Statement or supplement (including any Prospectus Supplement) to the Base Prospectus unless the Company has furnished
to the Manager a copy for its review prior to filing and will not file any such proposed amendment or supplement to which the Manager
reasonably objects, provided that the Company will have no obligation to provide to the Manager any advance copy of such filing if the
filing does not name the Manager and does not relate to the transaction herein provided. The Company will cause any supplement to the
Prospectus filed after the Effective Time to be properly completed, in a form approved by the Manager, and will file such supplement with
the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed thereby and will provide evidence
reasonably satisfactory to the Manager of such timely filing. The Company will promptly advise the Manager (i) when the Prospectus, and
any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (ii) when, during any period
when the delivery of a prospectus (whether physically or through compliance with Rule 172, 173 or any similar rule) is required under
the Act in connection with the offering or sale of the Shares, any amendment to the Registration Statement shall have been filed or become
effective (other than any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act), (iii) of any request
by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Prospectus or for any additional
information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of
any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company
of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the institution
or threatening of any proceeding for such purpose. The Company will use its commercially reasonable efforts to prevent the issuance of
any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance,
occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection,
including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its commercially
reasonable efforts to have such amendment or new registration statement declared effective as soon as practicable. Nothing herein shall
prevent the Company from making any filing or submission with the Commission which the Company believes to be required by applicable law
or necessary in fulfilling its obligations under the United States securities laws.
(b) Subsequent Events.
If, at any time on or after an Applicable Time but prior to the related Settlement Date, any event occurs as a result of which the Registration
Statement or Prospectus would include any untrue statement of a material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were made or the circumstances then prevailing not misleading, the
Company will (i) notify promptly the Manager so that any use of the Registration Statement or Prospectus may cease until such are amended
or supplemented; (ii) amend or supplement the Registration Statement or Prospectus to correct such statement or omission; and (iii) supply
any such amendment or supplement to the Manager in such quantities as the Manager may reasonably request.
(c) Notification
of Subsequent Filings. During any period when the delivery of a prospectus relating to the Shares is required (including in circumstances
where such requirement may be satisfied pursuant to Rule 172, 173 or any similar rule) to be delivered under the Act, any event occurs
as a result of which the Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall
be necessary to amend the Registration Statement, file a new registration statement or supplement the Prospectus to comply with the Act
or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Prospectus, the Company promptly
will (i) notify the Manager of any such event, (ii) subject to Section 4(a), prepare and file with the Commission an amendment or supplement
or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its commercially reasonable
efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in
order to avoid any disruption in use of the Prospectus and (iv) supply any supplemented Prospectus to the Manager in such quantities as
the Manager may reasonably request.
(d) Earnings Statements.
As soon as practicable, the Company will make generally available to its security holders and to the Manager an earnings statement or
statements of the Company and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158. For the avoidance
of doubt, the Company’s compliance with the reporting requirements of the Exchange Act shall be deemed to satisfy the requirements
of this Section 4(d).
(e) Delivery of Registration
Statement. Upon the request of the Manager, the Company will furnish to the Manager and counsel for the Manager, without charge, signed
copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by the Manager or dealer may
be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172, 173 or any similar rule),
as many copies of the Prospectus and any supplement thereto as the Manager may reasonably request. The Company will pay the expenses of
printing or other production of all documents relating to the offering.
(f) Qualification
of Shares. The Company will arrange, if necessary, for the qualification of the Shares for sale under the laws of such jurisdictions
as the Manager may designate and will maintain such qualifications in effect so long as required for the distribution of the Shares; provided
that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take
any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Shares, in
any jurisdiction where it is not now so subject.
(g) [RESERVED]
(h) Subsequent Equity
Issuances. The Company shall not deliver any Sales Notice hereunder (and any Sales Notice previously delivered shall not apply during
such three Business Days) for at least three (3) Business Days prior to any date on which the Company or any Subsidiary offers, sells,
issues, contracts to sell, contracts to issue or otherwise disposes of, directly or indirectly, any other shares of Common Stock or any
Common Stock Equivalents (other than the Shares), subject to Manager’s right to waive this obligation, provided that, without compliance
with the foregoing obligation, the Company may issue and sell Common Stock pursuant to any employee equity plan, equity incentive plan
or dividend reinvestment plan of the Company in effect at the Execution Time and the Company may issue Common Stock issuable upon the
conversion or exercise of Common Stock Equivalents outstanding at the Execution Time.
(i) Market Manipulation.
Until the termination of this Agreement, the Company will not take, directly or indirectly, any action designed to or that would constitute
or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation in violation
of the Act, Exchange Act or the rules and regulations thereunder of the price of any security of the Company to facilitate the sale or
resale of the Shares or otherwise violate any provision of Regulation M under the Exchange Act.
(j) Notification
of Incorrect Certificate. The Company will, at any time during the term of this Agreement, as supplemented from time to time, advise
the Manager immediately after it shall have received notice or obtained knowledge thereof, of any information or fact that would alter
or affect any opinion, certificate, letter and other document provided to the Manager pursuant to Section 6 herein.
(k) Certification
of Accuracy of Disclosure. Upon commencement of the offering of the Shares under this Agreement (and upon the recommencement of the
offering of the Shares under this Agreement following the termination of a suspension of sales hereunder lasting more than 30 Trading
Days), and each time that (i) the Registration Statement or Prospectus shall be amended or supplemented, other than by means of Incorporated
Documents, (ii) the Company files its Annual Report on Form 10-K under the Exchange Act, (iii) the Company files its quarterly reports
on Form 10-Q under the Exchange Act, (iv) the Company files a Current Report on Form 8-K containing amended financial information (other
than information that is furnished and not filed), if the Manager reasonably determines that the information in such Form 8-K is material,
or (v) the Shares are delivered to the Manager as principal at the Time of Delivery pursuant to a Terms Agreement (such commencement or
recommencement date and each such date referred to in (i), (ii), (iii), (iv) and (v) above, a “Representation Date”),
unless waived by the Manager, the Company shall furnish or cause to be furnished to the Manager forthwith a certificate dated and delivered
on the Representation Date, in form reasonably satisfactory to the Manager to the effect that the statements contained in the certificate
referred to in Section 6 of this Agreement which were last furnished to the Manager are true and correct at the Representation Date, as
though made at and as of such date (except that such statements shall be deemed to relate to the Registration Statement and the Prospectus
as amended and supplemented to such date) or, in lieu of such certificate, a certificate of the same tenor as the certificate referred
to in said Section 6, modified as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to
the date of delivery of such certificate. Notwithstanding the foregoing, the requirement to deliver the certificate hereunder is hereby
deemed waived for any Representation Date occurring at a time at which no Sales Notice is pending. If the Company subsequently decides
to sell Shares following a Representation Date when the Company relied on such deemed waiver and did not deliver to the Manager the certificate
required by this section, then before the Company delivers the Sales Notice or the Manager sells any Shares, the Company shall deliver
the certificate required by this section. In such event, the date of such Sales Notice shall be deemed a Representation Date.
(l) Bring Down Opinions;
Negative Assurance. Within five (5) Trading Days of each Representation Date, unless waived by the Manager, the Company shall furnish
or cause to be furnished forthwith to the Manager and to counsel to the Manager a written opinion of counsel to the Company (“Company
Counsel”) addressed to the Manager and dated and delivered within five (5) Trading Days of such Representation Date, in form
and substance reasonably satisfactory to the Manager, including a negative assurance representation. The requirement to furnish or cause
to be furnished an opinion (but not with respect to a negative assurance representation) under this Section 4(l) shall be waived for any
Representation Date other than a Representation Date on which a material amendment to the Registration Statement or Prospectus is made
or the Company files its Annual Report on Form 10-K or a material amendment thereto under the Exchange Act, unless the Manager reasonably
requests such deliverable required this Section 4(l) in connection with a Representation Date, upon which request such deliverable shall
be deliverable hereunder. Notwithstanding the foregoing, the requirement to furnish the negative assurance letter and, as applicable,
the opinion is hereby deemed waived for any Representation Date occurring at a time at which no Sales Notice is pending. If the Company
subsequently decides to sell Shares following a Representation Date when the Company relied on such deemed waiver and did not deliver
to the Manager the negative assurance letter and, as applicable, the opinion required by this section, then before the Company delivers
the Sales Notice or the Manager sells any Shares, the Company shall deliver the negative assurance letter and, as applicable, the opinion
required by this section. In such event, the date of such Sales Notice shall be deemed a Representation Date.
(m) Auditor Bring
Down “Comfort” Letter. Within five (5) Trading Days of each Representation Date, unless waived by the Manager, the Company
shall cause (1) the Company’s auditors (the “Accountants”), or other independent accountants satisfactory to
the Manager forthwith to furnish the Manager a letter, and (2) the Chief Financial Officer of the Company forthwith to furnish the Manager
a certificate, in each case dated within five (5) Trading Days of such Representation Date, in form satisfactory to the Manager, of the
same tenor as the letters and certificate referred to in Section 6 of this Agreement but modified to relate to the Registration Statement
and the Prospectus, as amended and supplemented to the date of such letters and certificate; provided, however, that the Company will
not be required to cause the Accountants to furnish such letters to the Manager in connection with the filing of a Current Report on Form
8-K unless (i) such Current Report on Form 8-K is filed at any time during which a prospectus relating to the Shares is required to be
delivered under the Act and (ii) the Manager has requested such letter based upon the event or events reported in such Current Report
on Form 8-K. The requirement to furnish or cause to be furnished a “comfort” letter under this Section 4(m) shall be waived
for any Representation Date other than a Representation Date on which a material amendment to the Registration Statement or Prospectus
is made or the Company files its Annual Report on Form 10-K or a material amendment thereto under the Exchange Act, unless the Manager
reasonably requests the deliverables required by this Section 4(m) in connection with a Representation Date, upon which request such deliverable
shall be deliverable hereunder. Notwithstanding the foregoing, the requirement to furnish the “comfort” letter and the “CFO”
certificate is hereby deemed waived for any Representation Date occurring at a time at which no Sales Notice is pending. If the Company
subsequently decides to sell Shares following a Representation Date when the Company relied on such deemed waiver and did not deliver
to the Manager the “comfort” letter and the “CFO” certificate required by this section, then before the Company
delivers the Sales Notice or the Manager sells any Shares, the Company shall deliver the “comfort” letter and the “CFO”
certificate required by this section. In such event, the date of such Sales Notice shall be deemed a Representation Date.
(n) Due Diligence
Session. Upon commencement of the offering of the Shares under this Agreement (and upon the recommencement of the offering of the
Shares under this Agreement following the termination of a suspension of sales hereunder lasting more than 30 Trading Days), and at each
Representation Date, the Company will conduct a due diligence session, in form and substance, reasonably satisfactory to the Manager,
which shall include representatives of management and Accountants. The Company shall cooperate timely with any reasonable due diligence
request from or review conducted by the Manager or its agents from time to time in connection with the transactions contemplated by this
Agreement, including, without limitation, providing information and available documents and access to appropriate corporate officers and
the Company’s agents during regular business hours, and timely furnishing or causing to be furnished such certificates, letters
and opinions from the Company, its officers and its agents, as the Manager may reasonably request.
(o) Acknowledgment
of Trading. The Company consents to the Manager trading in the Common Stock for the Manager’s own account and for the account
of its clients at the same time as sales of the Shares occur pursuant to this Agreement or pursuant to a Terms Agreement.
(p) Disclosure of
Shares Sold. The Company will disclose in its Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q, as applicable, the number
of Shares sold through the Manager under this Agreement, the Net Proceeds to the Company and the compensation paid by the Company with
respect to sales of Shares pursuant to this Agreement during the relevant quarter; and, if required by any subsequent change in Commission
policy or request, more frequently by means of a Current Report on Form 8-K or a further Prospectus Supplement.
(q) Rescission Right.
If to the knowledge of the Company, the conditions set forth in Section 6 shall not have been satisfied as of the applicable Settlement
Date, the Company will offer to any person who has agreed to purchase Shares from the Company as the result of an offer to purchase solicited
by the Manager the right to refuse to purchase and pay for such Shares.
(r) Bring Down of
Representations and Warranties. Each acceptance by the Company of an offer to purchase the Shares hereunder, and each execution and
delivery by the Company of a Terms Agreement, shall be deemed to be an affirmation to the Manager that the representations and warranties
of the Company contained in or made pursuant to this Agreement are true and correct as of the date of such acceptance or of such Terms
Agreement as though made at and as of such date, and an undertaking that such representations and warranties will be true and correct
as of the Settlement Date for the Shares relating to such acceptance or as of the Time of Delivery relating to such sale, as the case
may be, as though made at and as of such date (except that such representations and warranties shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented relating to such Shares).
(s) Reservation of
Shares. The Company shall ensure that there are at all times sufficient shares of Common Stock to provide for the issuance, free of
any preemptive rights, out of its authorized but unissued shares of Common Stock or shares of Common Stock held in treasury, of the maximum
aggregate number of Shares authorized for issuance by the Board pursuant to the terms of this Agreement. The Company will use its commercially
reasonable efforts to cause the Shares to be listed for trading on the Trading Market and to maintain such listing.
(t) Obligation Under
Exchange Act. During any period when the delivery of a prospectus relating to the Shares is required (including in circumstances where
such requirement may be satisfied pursuant to Rule 172, 173 or any similar rule) to be delivered under the Act, the Company will file
all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act
and the regulations thereunder.
(u) DTC Facility.
The Company shall cooperate with the Manager and use its reasonable efforts to permit the Shares to be eligible for clearance and settlement
through the facilities of DTC.
(v) Use of Proceeds.
The Company will apply the Net Proceeds from the sale of the Shares in the manner set forth in the Prospectus.
(w) Filing of Prospectus
Supplement. If any sales are made pursuant to this Agreement which are not made in “at the market” offerings as defined
in Rule 415, including, without limitation, any Placement pursuant to a Terms Agreement, the Company shall file a Prospectus Supplement
describing the terms of such transaction, the amount of Shares sold, the price thereof, the Manager’s compensation, and such other
information as may be required pursuant to Rule 424 and Rule 430B, as applicable, within the time required by Rule 424.
(x) Additional Registration
Statement. To the extent that the Registration Statement is not available for the sales of the Shares as contemplated by this Agreement,
the Company shall file a new registration statement with respect to any additional shares of Common Stock necessary to complete such sales
of the Shares and shall cause such registration statement to become effective as promptly as practicable. After the effectiveness of any
such registration statement, all references to “Registration Statement” included in this Agreement shall be deemed
to include such new registration statement, including all documents incorporated by reference therein pursuant to Item 12 of Form S-3,
and all references to “Base Prospectus” included in this Agreement shall be deemed to include the final form of prospectus,
including all documents incorporated therein by reference, included in any such registration statement at the time such registration statement
became effective.
5. Payment of Expenses.
The Company agrees to pay the costs and expenses incident to the performance of its obligations under this Agreement, whether or not the
transactions contemplated hereby are consummated, including without limitation: (i) the preparation, printing or reproduction and filing
with the Commission of the Registration Statement (including financial statements and exhibits thereto), the Prospectus and each amendment
or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for
counting and packaging) of such copies of the Registration Statement, the Prospectus, and all amendments or supplements to any of them,
as may, in each case, be reasonably requested for use in connection with the offering and sale of the Shares; (iii) the preparation, printing,
authentication, issuance and delivery of certificates for the Shares, including any stamp or transfer taxes in connection with the original
issuance and sale of the Shares; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other
agreements or documents printed (or reproduced) and delivered in connection with the offering of the Shares; (v) the registration of the
Shares under the Exchange Act, if applicable, and the listing of the Shares on the Trading Market; (vi) any registration or qualification
of the Shares for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable
fees and expenses of counsel for the Manager relating to such registration and qualification); (vii) the transportation and other expenses
incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Shares; (viii) the
fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the
Company; (ix) the filing fee under FINRA Rule 5110; (x) the reasonable fees and expenses of the Manager’s counsel, not to exceed
$50,000, which shall be paid upon the Effective Time; and (xi) all other costs and expenses incident to the performance by the Company
of its obligations hereunder. Excluding fees pursuant to subsection (x), the total fees changed to the Company by Manager will not exceed
$5,000 without the prior written consent of the Company.
6. Conditions to the Obligations
of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of
the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and
as of each Applicable Time, Settlement Date and Time of Delivery, (ii) the performance by the Company of its obligations hereunder and
(iii) the following additional conditions:
(a) Effectiveness
of the Registration Statement; Filing of Prospectus Supplement. The Registration Statement shall have been declared effective by the
Commission and the Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission shall have been filed
in the manner and within the time period required by Rule 424(b) with respect to any sale of Shares; each Prospectus Supplement shall
have been filed in the manner required by Rule 424(b) within the time period required hereunder and under the Act; any other material
required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable
time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or
any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) Delivery of Opinion.
The Company shall have caused the Company Counsel to furnish to the Manager its opinion and negative assurance statement, dated as of
such date and addressed to the Manager in form and substance acceptable to the Manager.
(c) Delivery of Officer’s
Certificate. The Company shall have furnished or caused to be furnished to the Manager a certificate of the Company signed by the
Chief Executive Officer or the President and the principal financial or accounting officer of the Company, dated as of such date, to the
effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any Prospectus Supplement
and any documents incorporated by reference therein and any supplements or amendments thereto and this Agreement and that:
(i) the representations
and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date
and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior
to such date;
(ii) no stop order suspending
the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose
have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of
the most recent financial statements included in the Registration Statement, the Prospectus and the Incorporated Documents, there has
been no Material Adverse Effect on the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated
in the Registration Statement and the Prospectus.
(d) Delivery of Accountants’
“Comfort” Letter. The Company shall have requested and caused the Accountants to have furnished to the Manager letters
(which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager,
confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable rules
and regulations adopted by the Commission thereunder and that they have performed a review of any unaudited interim financial information
of the Company included or incorporated by reference in the Registration Statement and the Prospectus and provide customary “comfort”
as to such review in form and substance satisfactory to the Manager.
(e) No Material Adverse
Event. Since the respective dates as of which information is disclosed in the Registration Statement, the Prospectus and the Incorporated
Documents, except as otherwise stated therein, there shall not have been any change, or any development involving a prospective change,
in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as
a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration
Statement, the Prospectus and the Incorporated Documents (exclusive of any amendment or supplement thereto) the effect of which is, in
the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery
of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Incorporated Documents and the Prospectus
(exclusive of any amendment or supplement thereto).
(f) Payment of All
Fees. The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule
456(b)(1)(i) of the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Act and,
if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either
in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(g) No FINRA Objections.
FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(h) Shares Listed
on Trading Market. The Shares shall have been listed and admitted and authorized for trading on the Trading Market, and satisfactory
evidence of such actions shall have been provided to the Manager.
(i) Other Assurances.
Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager such further information,
certificates and documents as the Manager may reasonably request.
If any of the conditions specified
in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned
above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager,
this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of
Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone and confirmed
in writing by electronic mail.
The documents required to be delivered
by this Section 6 shall be delivered to the office of Ellenoff Grossman & Schole LLP, counsel for the Manager, at 1345 Avenue of the
Americas, New York, New York 10105, email: capmkts@egsllp.com, on each such date as provided in this Agreement.
7. Indemnification and Contribution.
(a) Indemnification
by Company. The Company agrees to indemnify and hold harmless the Manager, the directors, officers, employees and agents of the Manager
and each person who controls the Manager within the meaning of either the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other Federal
or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration
Statement for the registration of the Shares as originally filed or in any amendment thereof, or in the Base Prospectus, any Prospectus
Supplement, the Prospectus or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party for any legal or other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished
to the Company by the Manager specifically for inclusion therein. This indemnity agreement will be in addition to any liability that the
Company may otherwise have.
(b) Indemnification
by Manager. The Manager agrees to indemnify and hold harmless the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Company to the Manager, but only with reference to written information relating to the Manager
furnished to the Company by the Manager specifically for inclusion in the documents referred to in the foregoing indemnity; provided,
however, that in no case shall the Manager be responsible for any amount in excess of the Broker Fee applicable to the Shares and
paid hereunder. This indemnity agreement will be in addition to any liability which the Manager may otherwise have.
(c) Indemnification
Procedures. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 7, notify the indemnifying
party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability
under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture
by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying
party shall be entitled to appoint counsel of the indemnifying party’s choice at the indemnifying party’s expense to represent
the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the indemnified party. Notwithstanding the indemnifying
party’s election to appoint counsel to represent the indemnified party in an action, the indemnified party shall have the right
to employ separate counsel (including local counsel), and the indemnifying party shall bear the documented and reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would
present such counsel with a conflict of interest (based on advice of counsel to the indemnified party), (ii) the actual or potential defendants
in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have
reasonably concluded (based on advice of counsel to the indemnified party) that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to the indemnifying party, (iii) the indemnifying party
shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action or (iv) the indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will not, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual
or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action, suit or proceeding.
(d) Contribution.
In the event that the indemnity provided in paragraph (a), (b) or (c) of this Section 7 is unavailable to or insufficient to hold harmless
an indemnified party for any reason, the Company and the Manager agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with investigating or defending the same) (collectively “Losses”)
to which the Company and the Manager may be subject in such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and by the Manager on the other from the offering of the Shares; provided, however, that in
no case shall the Manager be responsible for any amount in excess of the Broker Fee applicable to the Shares and paid hereunder. If the
allocation provided by the immediately preceding sentence is unavailable for any reason, the Company and the Manager severally shall contribute
in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one
hand and of the Manager on the other in connection with the statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company shall be deemed to be equal to the total net proceeds from the offering
(before deducting expenses) received by it, and benefits received by the Manager shall be deemed to be equal to the Broker Fee applicable
to the Shares and paid hereunder as determined by this Agreement. Relative fault shall be determined by reference to, among other things,
whether any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates
to information provided by the Company on the one hand or the Manager on the other, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Manager agree that
it would not be just and equitable if contribution were determined by pro rata allocation or any other method of allocation which does
not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For purposes of this Section 7, each person who controls the Manager within the meaning
of either the Act or the Exchange Act and each director, officer, employee and agent of the Manager shall have the same rights to contribution
as the Manager, and each person who controls the Company within the meaning of either the Act or the Exchange Act, each officer of the
Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as
the Company, subject in each case to the applicable terms and conditions of this paragraph (d).
8. Termination.
(a) The Company shall
have the right, by giving written notice as hereinafter specified, to terminate the provisions of this Agreement relating to the solicitation
of offers to purchase the Shares in its sole discretion at any time upon ten (10) Business Days’ prior written notice. Any such
termination shall be without liability of any party to any other party except that (i) with respect to any pending sale, through the Manager
for the Company, the obligations of the Company, including in respect of compensation of the Manager, shall remain in full force and effect
notwithstanding the termination and (ii) the provisions of Sections 5, 6, 7, 8, 9, 10, 12, the second sentence of 13, 14 and 15 of this
Agreement shall remain in full force and effect notwithstanding such termination.
(b) The Manager shall
have the right, by giving written notice as hereinafter specified, to terminate the provisions of this Agreement relating to the solicitation
of offers to purchase the Shares in its sole discretion at any time. Any such termination shall be without liability of any party to any
other party except that the provisions of Sections 5, 6, 7, 8, 9, 10, 12, the second sentence of 13, 14 and 15 of this Agreement shall
remain in full force and effect notwithstanding such termination.
(c) This Agreement shall
remain in full force and effect until such date that this Agreement is terminated pursuant to Sections 8(a) or (b) above or otherwise
by mutual agreement of the parties, provided that any such termination by mutual agreement shall in all cases be deemed to provide that
Sections 5, 6, 7, 8, 9, 10, 12, the second sentence of 13, 14 and 15 of this Agreement shall remain in full force and effect.
(d) Any termination
of this Agreement shall be effective on the date specified in such notice of termination, provided that such termination shall not be
effective until the close of business on the date of receipt of such notice by the Manager or the Company, as the case may be. If such
termination shall occur prior to the Settlement Date or Time of Delivery for any sale of the Shares, such sale of the Shares shall settle
in accordance with the provisions of Section 2(b) of this Agreement.
(e) In the case of any
purchase of Shares by the Manager pursuant to a Terms Agreement, the obligations of the Manager pursuant to such Terms Agreement shall
be subject to termination, in the absolute discretion of the Manager, by prompt oral notice given to the Company prior to the Time of
Delivery relating to such Shares, if any, and confirmed promptly by electronic mail, if since the time of execution of the Terms Agreement
and prior to such delivery and payment, (i) trading in the Common Stock shall have been suspended by the Commission or the Trading Market
or trading in securities generally on the Trading Market shall have been suspended or limited or minimum prices shall have been established
on such exchange, (ii) a banking moratorium shall have been declared either by Federal or New York State authorities or (iii) there shall
have occurred any outbreak or escalation of hostilities, declaration by the United States of a national emergency or war, or other calamity
or crisis the effect of which on financial markets is such as to make it, in the sole judgment of the Manager, impractical or inadvisable
to proceed with the offering or delivery of the Shares as contemplated by the Prospectus (exclusive of any amendment or supplement thereto).
9. Representations and Indemnities
to Survive. The respective agreements, representations, warranties, indemnities and other statements of the Company or its officers
and of the Manager set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation
made by the Manager or the Company or any of the officers, directors, employees, agents or controlling persons referred to in Section
7, and will survive delivery of and payment for the Shares.
10. Notices. All communications
hereunder will be in writing and effective only on receipt, and will be mailed, delivered, or e-mailed to the addresses of the Company
and the Manager, respectively, set forth on the signature page hereto.
11. Successors. This Agreement
will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers, directors, employees,
agents and controlling persons referred to in Section 7, and no other person will have any right or obligation hereunder.
12. No Fiduciary Duty.
The Company hereby acknowledges that (a) the purchase and sale of the Shares pursuant to this Agreement is an arm’s-length commercial
transaction between the Company, on the one hand, and the Manager and any affiliate through which it may be acting, on the other, (b)
the Manager is acting solely as sales agent and/or principal in connection with the purchase and sale of the Company’s securities
and not as a fiduciary of the Company and (c) the Company’s engagement of the Manager in connection with the offering and the process
leading up to the offering is as independent contractors and not in any other capacity. Furthermore, the Company agrees that it is solely
responsible for making its own judgments in connection with the offering (irrespective of whether the Manager has advised or is currently
advising the Company on related or other matters). The Company agrees that it will not claim that the Manager has rendered advisory services
of any nature or respect, or owe an agency, fiduciary or similar duty to the Company, in connection with such transaction or the process
leading thereto.
13. Integration. This Agreement
and any Terms Agreement supersede all prior agreements and understandings (whether written or oral) between the Company and the Manager
with respect to the subject matter hereof. Notwithstanding anything herein to the contrary, the letter agreement, dated June 16, 2023,
by and between the Company and the Manager shall continue to be effective and the terms therein shall continue to survive and be enforceable
by the Manager in accordance with its terms, provided that, in the event of a conflict between the terms of the letter agreement and this
Agreement, the terms of this Agreement shall prevail.
14. Amendments; Waivers.
No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed, in the case of
an amendment, by the Company and the Manager. No waiver of any default with respect to any provision, condition or requirement of this
Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision,
condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the
exercise of any such right.
15. Applicable Law. This
Agreement and any Terms Agreement will be governed by and construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York. Each of the Company and the Manager: (i) agrees that any legal suit,
action or proceeding arising out of or relating to this Agreement shall be instituted exclusively in New York Supreme Court, County of
New York, or in the United States District Court for the Southern District of New York, (ii) waives any objection which it may have or
hereafter to the venue of any such suit, action or proceeding, and (iii) irrevocably consents to the exclusive jurisdiction of the New
York Supreme Court, County of New York, and the United States District Court for the Southern District of New York in any such suit, action
or proceeding. Each of the Company and the Manager further agrees to accept and acknowledge service of any and all process which may be
served in any such suit, action or proceeding in the New York Supreme Court, County of New York, or in the United States District Court
for the Southern District of New York and agrees that service of process upon the Company mailed by certified mail to the Company’s
address shall be deemed in every respect effective service of process upon the Company, in any such suit, action or proceeding, and service
of process upon the Manager mailed by certified mail to the Manager’s address shall be deemed in every respect effective service
process upon the Manager, in any such suit, action or proceeding. If either party shall commence an action or proceeding to enforce any
provision of this Agreement, then the prevailing party in such action or proceeding shall be reimbursed by the other party for its reasonable
attorney’s fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
16.
Waiver of Jury Trial. The Company 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, any Terms Agreement or the transactions contemplated
hereby or thereby.
17. Counterparts. This
Agreement and any Terms Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement, which may be delivered in .pdf file via e-mail.
***************************
18. Headings. The section
headings used in this Agreement and any Terms Agreement are for convenience only and shall not affect the construction hereof.
If the foregoing is in accordance
with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance
shall represent a binding agreement among the Company and the Manager.
Very truly yours,
STRYVE FOODS, INC. |
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Address for Notice:
Post Office Box 864
Frisco, Texas 75034
Attention: General Counsel
E-mail: norma.garcia@stryve.com
The foregoing Agreement is hereby confirmed and accepted as
of the date first written above.
CRAIG-HALLUM CAPITAL GROUP LLC |
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By: |
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Title: |
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Address for Notice:
222 South 9th Street, Suite
350
Minneapolis, MN 55402
Attention: Rick Hartfiel, Director of
Investment Banking
E-mail: rick.hartfiel@craig-hallum.com
Form of Terms Agreement
ANNEX I
STRYVE FOODS, INC.
TERMS AGREEMENT
Dear Sirs:
Stryve Foods, Inc. (the
“Company”) proposes, subject to the terms and conditions stated herein and in the At The Market Offering Agreement,
dated June 30, 2023 (the “At The Market Offering Agreement”), between the Company and Craig-Hallum Capital Group LLC
(“Manager”), to issue and sell to Manager the securities specified in the Schedule I hereto (the “Purchased
Shares”).
Each of the provisions
of the At The Market Offering Agreement not specifically related to the solicitation by the Manager, as agent of the Company, of offers
to purchase securities is incorporated herein by reference in its entirety, and shall be deemed to be part of this Terms Agreement to
the same extent as if such provisions had been set forth in full herein. Each of the representations and warranties set forth therein
shall be deemed to have been made at and as of the date of this Terms Agreement and the Time of Delivery, except that each representation
and warranty in Section 3 of the At The Market Offering Agreement which makes reference to the Prospectus (as therein defined) shall be
deemed to be a representation and warranty as of the date of the At The Market Offering Agreement in relation to the Prospectus, and also
a representation and warranty as of the date of this Terms Agreement and the Time of Delivery in relation to the Prospectus as amended
and supplemented to relate to the Purchased Shares.
An amendment to the
Registration Statement (as defined in the At The Market Offering Agreement), or a supplement to the Prospectus, as the case may be, relating
to the Purchased Shares, in the form heretofore delivered to the Manager is now proposed to be filed with the Securities and Exchange
Commission.
Subject to the terms and conditions set
forth herein and in the At The Market Offering Agreement which are incorporated herein by reference, the Company agrees to issue and sell
to the Manager and the latter agrees to purchase from the Company the number of shares of the Purchased Shares at the time and place and
at the purchase price set forth in the Schedule I hereto.
If
the foregoing is in accordance with your understanding, please sign and return to us a counterpart hereof, whereupon this Terms Agreement,
including those provisions of the At The Market Offering Agreement incorporated herein by reference, shall constitute a binding agreement
between the Manager and the Company.
STRYVE FOODS, INC. |
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Name: |
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Title: |
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ACCEPTED as of the date first written above.
CRAIG-HALLUM CAPITAL GROUP LLC |
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By: |
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Name: |
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Title: |
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Exhibit
5.1
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ATTORNEYS
AT LAW
ONE
INDEPENDENT DRIVE, SUITE 1300
JACKSONVILLE,
FLORIDA 32202-5017
904.359.2000
TEL
904.359.8700
FAX
www.foley.com |
Stryve
Foods, Inc.
Post
Office Box 864
Frisco,
TX 75034
June
30, 2023
|
Re: |
Registration Statement
on Form S-3 |
Ladies
and Gentlemen:
We
have acted as counsel to Stryve Foods, Inc., a Delaware corporation (the “Company”), in connection with the preparation
of a Registration Statement on Form S-3 (the “Registration Statement”), including the Prospectus constituting a part
thereof (the “Prospectus”), filed on the date hereof with the Securities and Exchange Commission (the “SEC”)
under the Securities Act of 1933, as amended (the “Securities Act”), relating to the potential issuance and sale by
the Company from time to time of up to $20 million aggregate amount of any of the following: (i) shares of the Company’s
Class A common stock, $0.0001 par value (the “Common Stock”); (ii) shares of the Company’s preferred stock,
$0.0001 par value (the “Preferred Stock”); (iii) contracts that obligate holders to purchase from the Company, and
the Company to sell to these holders, shares of the Common Stock or other securities at a future date (the “Securities Purchase
Contracts”); (iv) units consisting of one or more shares of Common Stock, shares of Preferred Stock, Warrants, Rights, Securities
Purchase Contracts or any combination of the foregoing (the “Units”); (v) subscription rights to purchase Common Stock,
Preferred Stock or other securities of the Company (or any combination thereof) (the “Rights”); and (vi) warrants
to purchase Common Stock, Preferred Stock, Units or other securities of the Company (the “Warrants”). The Common Stock,
the Preferred Stock, the Securities Purchase Contracts, the Units, the Rights and the Warrants are referred to herein collectively as
the “Securities”. The Prospectus provides that it will be supplemented in the future by one or more supplements to
such Prospectus and/or other offering material in connection with the Company’s specific proposed offering of any of such Securities
(each, a “Prospectus Supplement”).
In
so acting, we have examined originals or copies (certified or otherwise identified to our satisfaction) of (i) the Amended and Restated
Certificate of Incorporation of the Company, as in effect on the date hereof; (ii) the Bylaws of the Company as in effect on the date
hereof; (iii) the Registration Statement; (iv) the prospectus contained within the Registration Statement; and (v) such corporate records,
agreements, documents and other instruments, and such certificates or comparable documents of public officials and of officers and representatives
of the Company, and have made inquiries of such officers and representatives, as we have deemed relevant and necessary as a basis for
the opinion hereinafter set forth.
In
our examination of the above-referenced documents, we have assumed all electronic and manual signatures on all documents reviewed by
us (including, without limitation, signatures delivered via electronic signature systems such as DocuSign, SecureDocs, or comparable
electronic signature methods or systems) are genuine signatures of the purported signatories, the authenticity of all documents, certificates
and instruments submitted to us as originals and the conformity with the originals of all documents submitted to us as copies. We have
also assumed that (i) the Registration Statement, and any amendments thereto (including post-effective amendments), will have become
effective and will comply with all applicable laws; (ii) a Prospectus Supplement, if required, will have been prepared and filed with
the SEC describing the Securities offered thereby; (iii) all Securities will be issued and sold in compliance with applicable federal
and state securities laws and in the manner stated in the Registration Statement and any applicable Prospectus Supplement; (iv) a definitive
purchase, underwriting, placement, dealer or similar agreement with respect to any Securities offered will have been duly authorized
and validly executed and delivered by the Company and the other parties thereto; (v) any Securities issuable upon conversion, exchange
or exercise of any Security being offered will have been duly authorized, created and, if appropriate, reserved for issuance upon such
conversion, exchange or exercise; and (vi) with respect to shares of Common Stock or Preferred Stock offered, there will be sufficient
shares of Common Stock or Preferred Stock authorized under the Company’s Amended and Restated Articles of Incorporation, and not
otherwise reserved for issuance.
Based
upon and subject to the foregoing and the other matters set forth herein, and having regard for such legal considerations as we deem
relevant, we are of the opinion that:
1.
All requisite actions necessary to make the shares of Common Stock subsequently offered by the Company under the Registration Statement
validly issued, fully paid and non-assessable shall have been taken when:
a.
The Company’s Board of Directors, or a committee thereof duly authorized by the Board of Directors, has adopted appropriate resolutions
to authorize the issuance and sale of the Common Stock; and
b.
Such shares of Common Stock have been issued and sold by the Company for the consideration contemplated by, and otherwise in conformity
with, the Registration Statement, as supplemented by a Prospectus Supplement with respect to such issuance and sale, and the acts, proceedings
and documents referred to above.
2.
All requisite actions necessary to make the shares of Preferred Stock subsequently offered by the Company under the Registration Statement
validly issued, fully paid and non-assessable shall have been taken when:
a.
The Company’s Board of Directors, or a committee thereof duly authorized by the Board of Directors, has adopted appropriate resolutions
to establish the voting powers, designations, preferences and relative, participating, optional or other special rights, if any, or the
qualifications, limitations or restrictions, if any, and other terms of such shares as set forth in or contemplated by the Registration
Statement, the exhibits thereto and any Prospectus Supplement relating to such Preferred Stock, and to authorize the issuance and sale
of such shares of Preferred Stock;
b.
Certificate of Amendment to the Company’s Amended and Restated Certificate of Incorporation with respect to any such established
voting powers, designations, preferences and relative, participating, optional or other special rights, if any, or the qualifications,
limitations or restrictions, if any, and other terms of such shares have been filed with the State of Delaware in the form and manner
required by law; and
c.
Such shares of Preferred Stock have been issued and sold by the Company for the consideration contemplated by, and otherwise in conformity
with, the Registration Statement, as supplemented by a Prospectus Supplement with respect to such issuance and sale, and the acts, proceedings
and documents referred to above.
3.
All requisite actions necessary to make the Securities Purchase Contracts and Units subsequently offered by the Company under the Registration
Statement valid, legal and binding obligations of the Company, subject to (i) bankruptcy, insolvency, reorganization, fraudulent transfer,
fraudulent conveyance, moratorium and other similar laws of general application affecting the rights and remedies of creditors, and (ii)
general principles of equity, regardless of whether applied in a proceeding in equity or at law, shall have been taken when:
a.
The Company’s Board of Directors, or a committee thereof or one or more officers of the Company, in each case duly authorized by
the Board of Directors, has taken action to approve and establish the terms and form of such Securities Purchase Contracts and the documents,
including any agreements, evidencing and used in connection with the issuance and sale of such Units, and to authorize the issuance and
sale of such Securities Purchase Contracts and Units;
b.
The terms of such Securities Purchase Contracts and Units and of their issuance and sale have been established so as not to violate any
applicable law or result in a default under or breach of any agreement or instrument binding upon the Company and so as to comply with
any requirements or restrictions imposed by any court or governmental entity having jurisdiction over the Company;
c.
Such Securities Purchase Contracts and Units have been duly executed and delivered in accordance with their respective terms and provisions,
as applicable; and
d.
Such Securities Purchase Contracts and Units have been sold by the Company for the consideration contemplated by, and otherwise in conformity
with, the Registration Statement, as supplemented by a Prospectus Supplement with respect to such issuance and sale, and the acts, proceedings
and documents referred to above.
4.
All requisite actions necessary to make the Rights subsequently offered by the Company under the Registration Statement valid, legal
and binding obligations of the Company, subject to (i) bankruptcy, insolvency, reorganization, fraudulent transfer, fraudulent conveyance,
moratorium and other similar laws of general application affecting the rights and remedies of creditors, and (ii) general principles
of equity, regardless of whether applied in a proceeding in equity or at law, shall have been taken when:
a.
The Company’s Board of Directors, or a committee thereof or one or more officers of the Company, in each case duly authorized by
the Board of Directors, has taken action to establish the terms of such Rights and to authorize the issuance and sale of such Rights;
b.
The terms of such Rights and of their issuance and sale have been established so as not to violate any applicable law or result in a
default or breach of any agreement or instrument binding upon the Company and so as to comply with any requirements or restrictions imposed
by any court or governmental entity having jurisdiction over the Company; and
c.
Such Rights have been issued and sold by the Company for the consideration contemplated by, and otherwise in conformity with, the Registration
Statement, as supplemented by a Prospectus Supplement with respect to such issuance and sale, and the acts, proceedings and documents
referred to above.
5.
All requisite actions necessary to make the Warrants subsequently offered by the Company under the Registration Statement will be valid,
legal and binding obligations of the Company, subject to (i) bankruptcy, insolvency, reorganization, fraudulent transfer, fraudulent
conveyance, moratorium and other similar laws of general application affecting the rights and remedies of creditors and (ii) general
principles of equity, regardless of whether applied in a proceeding in equity or at law, shall have been taken when:
a.
The Company’s Board of Directors, or a committee thereof or one or more officers of the Company, in each case duly authorized by
the Board of Directors, has taken action to approve and establish the terms and form of the Warrants and the documents, including any
warrant agreements, evidencing and used in connection with the issuance and sale of the Warrants, and to authorize the issuance and sale
of such Warrants;
b.
The terms of such Warrants and of their issuance and sale by the Company have been established so as not to violate any applicable law
or result in a default under or breach of any agreement or instrument binding upon the Company and so as to comply with any requirements
or restrictions imposed by any court or governmental entity having jurisdiction over the Company;
c.
Any such warrant agreements have been duly executed and delivered;
d.
Such Warrants have been duly executed and delivered in accordance with the terms and provisions of any applicable warrant agreement;
and
e.
Such Warrants have been issued and sold by the Company for the consideration contemplated by, and otherwise in conformity with, the Registration
Statement, as supplemented by a Prospectus Supplement with respect to such issuance and sale, and the acts, proceedings and documents
referred to above.
The
opinion expressed herein is limited to the General Corporation Law of the State of Delaware (including reported judicial decisions interpreting
the General Corporation Law of the State of Delaware) and we express no opinion as to the effect on the matters covered by this letter
of the laws of any other jurisdiction.
We
hereby consent to the filing of this letter as an exhibit to the Registration Statement and to the reference to our firm under the caption
“Legal Matters” in the prospectus which is a part of the Registration Statement. In giving such consents, we do not thereby
admit that we are in the category of persons whose consent is required under Section 7 of the Act or the Rules and Regulations of the
Commission promulgated thereunder.
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Sincerely, |
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/s/
FOLEY & LARDNER LLP |
Exhibit
5.2
|
ATTORNEYS
AT LAW
ONE
INDEPENDENT DRIVE, SUITE 1300
JACKSONVILLE,
FLORIDA 32202-5017
904.359.2000
TEL
904.359.8700
FAX
www.foley.com |
Stryve
Foods, Inc.
Post
Office Box 864
Frisco,
TX 75034
June
30, 2023
|
Re: |
Registration Statement
on Form S-3 |
Ladies
and Gentlemen:
We
have acted as counsel to Stryve Foods, Inc., a Delaware corporation (the “Company”), in connection with the Company’s
issuance and sale, through or to Craig-Hallum Capital Group LLC (the “Sales Agent”), of up to $5.7 million
of shares of the Company’s Class A common stock, par value $0.0001 per share (the “Shares”), from time to time
and at various prices in an “at-the-market” offering pursuant to (i) that certain at the market offering agreement, dated
June 30, 2023 (the “Sales Agreement”), by and between the Company and the Sales Agent, and (ii) the Company’s
Registration Statement on Form S-3 filed with the Securities and Exchange Commission (the “Commission”) on the date
hereof (the “Registration Statement”), the base prospectus filed as part of the Registration Statement (the “Base
Prospectus”), and the prospectus supplement contained in the Registration Statement (together with the Base Prospectus, the
“Prospectus”).
In
so acting, we have examined originals or copies (certified or otherwise identified to our satisfaction) of (i) the Sales Agreement; (ii)
the Amended and Restated Certificate of Incorporation of the Company, as in effect on the date hereof; (iii) the Bylaws of the Company
as in effect on the date hereof; (iv) the Registration Statement; (v) the prospectus contained within the Registration Statement; and
(vi) such corporate records, agreements, documents and other instruments, and such certificates or comparable documents of public officials
and of officers and representatives of the Company, and have made inquiries of such officers and representatives, as we have deemed relevant
and necessary as a basis for the opinion hereinafter set forth. In our examination of the above-referenced documents, we have assumed
all electronic and manual signatures on all documents reviewed by us (including, without limitation, signatures delivered via electronic
signature systems such as DocuSign, SecureDocs, or comparable electronic signature methods or systems) are genuine signatures of the
purported signatories, the authenticity of all documents, certificates and instruments submitted to us as originals and the conformity
with the originals of all documents submitted to us as copies.
Based
upon, subject to and limited by the foregoing, we are of the opinion that, upon the issuance of the Shares pursuant to the terms of the
Sales Agreement and the receipt by the Company of the consideration for the Shares pursuant to the terms of the Sales Agreement, the
Shares will be validly issued, fully paid, and nonassessable.
The
opinion expressed herein is limited to the General Corporation Law of the State of Delaware (including reported judicial decisions interpreting
the General Corporation Law of the State of Delaware) and we express no opinion as to the effect on the matters covered by this letter
of the laws of any other jurisdiction. This opinion is issued as of the date hereof, and we assume no obligation to supplement this opinion
if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinion expressed herein
after the date hereof. This opinion is limited to the matters set forth herein, and no other opinion should be inferred beyond the matters
expressly stated.
We
consent to the filing of this opinion in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act
of 1933, as amended (the “Securities Act”), as Exhibit 5.2 to the Registration Statement and to the references to our firm
therein. In giving our consent, we do not admit that we are “experts” within the meaning of Section 11 of the Securities
Act or within the category of persons whose consent is required by Section 7 of the Securities Act.
|
Sincerely, |
|
|
|
/s/
FOLEY & LARDNER LLP |
Exhibit
23.1
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
consent to the incorporation by reference in this Registration Statement of Stryve Foods, Inc. on Form S-3 of our report dated April
17, 2023, which includes an explanatory paragraph as to the Company’s ability to continue as a going concern with respect to our
audits of the consolidated financial statements of Stryve Foods, Inc. as of December 31, 2022 and 2021 and for the years ended December
31, 2022 and 2021, which report appearing in the Annual Report on Form 10-K of Stryve Foods, Inc. for the year ended December 31, 2022.
We also consent to the reference to our firm under the heading “Experts” in the Prospectus, which is part of this Registration
Statement.
/s/
Marcum LLP
Marcum
LLP
New
York, NY
June
30, 2023
Exhibit
107
Calculation
of Filing Fee Tables
Form
S-3
STRYVE
FOODS, INC.
(Exact
Name of Registrant as Specified in its Charter)
Table
1: Newly Registered and Carry Forward Securities
Security Type(1) | |
Security Class Title | |
Fee Calculation Rule | | |
Amount Registered(2) | | |
Proposed Maximum Offering Price Per Share(3) | | |
Maximum Aggregate Offering Price(2) | |
Fee Rate | | |
Amount of Registration Fee |
Equity | |
Class A Common Stock, $0.0001 par value per share | |
| 457 | (o) | |
| — | | |
| — | | |
| 20,000,000 | | |
| 0.00011020 | | |
| 2,204 | |
Equity | |
Preferred Stock, $0.0001 par value per share | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
Other | |
Securities Purchase Contracts | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
Other | |
Warrants | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
Other | |
Subscription Rights | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
Other | |
Units(4) | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
Unallocated (Universal) Shelf | |
— | |
| 457 | (o) | |
| — | | |
| — | | |
$ | | | |
| 0.0001102 | | |
$ | 2,204 | |
Total Offering Amounts | |
| | | |
| 20,000,000 | | |
| 0.0001102 | | |
$ | 2,204 | |
Total Fee Offsets | | |
| | | |
| | | |
| | | |
| — | |
Net Fee Due | | |
| | | |
| | | |
| | | |
$ | 2,204 | |
(1)
Represents securities that may be offered and sold from time to time in one or more offerings by Stryve Foods, Inc.
(2)
There are being registered under this registration statement such indeterminate number of shares of Class A common stock, preferred stock
and securities purchase contracts; such indeterminate number of warrants to purchase Class A common stock, preferred stock, securities
purchase contracts and/or units; such indeterminate number of subscription rights; and such indeterminate number of units as may be sold
by the registrant from time to time, which together shall have an aggregate initial offering price not to exceed $20 million.
Any securities registered hereunder may be sold separately or as units with other securities registered hereunder. The securities registered
hereunder also include such indeterminate number of shares of common stock and preferred stock, rights, and warrants as may be issued
upon conversion of or exchange for preferred stock that provide for conversion or exchange; upon exercise of warrants; pursuant to the
terms of any units; or pursuant to the anti-dilution provisions of any such securities. In addition, pursuant to Rule 416 under the Securities
Act of 1933, as amended (the “Securities Act”), the shares being registered hereunder include such indeterminate number of
shares of Class A common stock and preferred stock as may be issuable with respect to the shares being registered hereunder as a result
of stock splits, stock dividends, or similar events.
(3)
The proposed maximum aggregate offering price per class of security will be determined from time to time by the Registrant in
connection with the issuance by the Registrant of the securities registered hereunder and is not specified as to each class of
security pursuant to General Instruction II.D. of Form S-3 under the Securities Act. Separate consideration may or may not be
received for securities that are issuable on exercise, conversion or exchange of other securities, or that are issued in
units.
(4)
Each unit will represent an interest in two or more securities, which may or may not be separable from one another.
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