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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO
SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event
reported): October
21, 2024
Evolution Petroleum Corporation
(Exact name of registrant as specified in its charter)
001-32942
(Commission File Number)
| Nevada |
41-1781991 |
| (State or Other Jurisdiction of Incorporation) |
(I.R.S. Employer Identification No.) |
| 1155 Dairy Ashford Road, Suite 425, Houston, Texas |
77079 |
| (Address of Principal Executive Offices) |
(Zip Code) |
(713) 935-0122
(Registrant’s Telephone Number, Including
Area Code)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction
A.2. below):
| o | Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425) |
| o | Soliciting material pursuant to Rule 14a-12 under the exchange
Act (17 CFR 240.14a-12) |
| o | Pre-commencement communications pursuant to Rule 14d-2(b) under
the Exchange Act (17 CFR 240.14d-2(b)) |
| o | Pre-commencement communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of Each Class |
|
Trading Symbol(s) |
|
Name of Each Exchange On Which Registered |
| Common Stock, $0.001 par value |
|
EPM |
|
NYSE American |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
| |
Emerging growth company o |
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 1.01 Entry into a Material Definitive
Agreement.
On
October 21, 2024, Evolution Petroleum Corporation (the “Company” or “we” or “our”) entered into
a Sales Agreement (the “Sales Agreement”) with Roth Capital Partners, LLC (the “Lead Agent”), Northland Securities
Inc. (“Northland”), and A.G.P./Alliance Global Partners (“AGP” and, together with the Lead Agent and Northland,
the “Agents”) pursuant to which the Company may issue and sell, from time to time, up to $30,000,000 of shares of common stock,
par value $0.001 per share (the “Common Stock”), through or to the Lead Agent, acting as agent or principal.
The
Company is not obligated to sell any shares of Common Stock under the Sales Agreement. Each time the Company wishes to issue and sell
the Common Stock under the Sales Agreement, the Company will provide the Lead Agent with a placement notice describing the amount of Common
Stock to be sold, the time period during which sales are requested to be made, any limitation on the amount of Common Stock that may be
sold in any single day, any minimum price below which sales may not be made or any minimum price requested for sales in a given time period
and any other instructions relevant to such requested sales. Subject to the terms and conditions of the Sales Agreement, the Lead Agent
will use commercially reasonable efforts, consistent with its normal trading and sales practices and, applicable state and federal laws,
rules and regulations and the rules of the NYSE American to sell shares of Common Stock under the terms and subject to the conditions
of the placement notice and the Sales Agreement. We or the Lead Agent may suspend the offering of Common Stock pursuant to a placement
notice upon notice and subject to other conditions. Generally, the Lead Agent may sell the shares of Common Stock by any method permitted
by law deemed to be an “at the market offering” as defined by Rule 415(a)(4) promulgated under the Securities Act
of 1933, as amended, including sales made directly on or through the NYSE American or any other existing trading market for the Common
Stock, in negotiated transactions at market prices prevailing at the time of sale or at prices related to prevailing market prices, or
any other method permitted by law.
The
Sales Agreement provides that the Lead Agent will be entitled to compensation at a fixed commission rate of 3.00% of the gross proceeds
from the sale of our Common Stock on our behalf pursuant to the Sales Agreement. We have agreed to reimburse the Agents for their reasonable
and documented out-of-pocket expenses (including but not limited to the reasonable and documented fees and expenses of their legal counsel)
in an amount not to exceed $75,000, in connection with entering into the Sales Agreement and for the Agents’ reasonable and documented
out-of-pocket expenses related to quarterly maintenance of the Sales Agreement (including but not limited to the reasonable and documented
fees and expenses of its legal counsel) on a quarterly basis in an amount not to exceed $5,000. The Sales Agreement contains customary
representations, warranties and agreements by the Company, indemnification obligations of the Company and the Agents, other obligations
of the parties and termination provisions.
The
shares of Common Stock will be issued pursuant to the Company’s effective shelf registration statement on Form S-3 (File No. 333-265430),
filed with the Securities and Exchange Commission (the “SEC”) on February 10, 2023 and declared effective by the SEC
on February 23, 2023, and the accompanying base prospectus included therein as supplemented by the prospectus supplement, dated October 21,
2024, filed with the SEC.
The
foregoing description of the Sales Agreement is not complete and is qualified in its entirety by reference to the full text of such agreement,
a copy of which is filed herewith as Exhibit 1.1 to this Current Report on Form 8-K and is incorporated herein by reference.
A
copy of the legal opinion and consent of Fennemore Craig, P.C. relating to the shares of Common Stock being offered and sold pursuant
to the Sales Agreement is attached hereto as Exhibit 5.1.
This
Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy any shares under the Sales
Agreement, nor shall there be any sale of such shares in any state in which such offer, solicitation or sale would be unlawful prior to
registration or qualification under the securities laws of any such state or jurisdiction.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
| Dated: October 21, 2024 |
Evolution Petroleum Corporation (Registrant) |
| |
|
|
|
| |
By: |
/s/ Ryan Stash |
| |
|
Name: |
Ryan Stash |
| |
|
Title: |
Senior Vice President and Chief Financial Officer |
Exhibit 1.1
EVOLUTION PETROLEUM CORPORATION
$30,000,000
Common Stock
($0.001 par value per share)
Sales Agreement
October 21, 2024
Roth Capital Partners, LLC, as Lead Agent
888 San Clemente Drive, Suite 400
Newport Beach, CA 92660
Northland Securities, Inc.
150 South Fifth Street, Suite 3300
Minneapolis, Minnesota 55402
A.G.P./Alliance Global Partners
590 Madison Avenue
New York, NY 10022
Ladies and Gentlemen:
Evolution Petroleum Corporation,
a Nevada corporation (the “Company”), confirms its agreement (this “Agreement”) with Roth Capital
Partners, LLC (the “Lead Agent”), Northland Securities, Inc. (“Northland”) and A.G.P./Alliance
Global Partners (“AGP,” and together with the Lead Agent and Northland, the “Agents” and each, an
“Agent”), as follows:
1. Issuance
and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the
conditions set forth herein, it may issue and sell through or to the Agents, shares (the “Placement Shares”) of common
stock of the Company, $0.001 par value per share (the “Common Stock”) having an aggregate offering price of up to
$30,000,000, provided, however, that in no event shall the Company issue or sell through the Agents such number of Placement Shares
that exceeds (a) the number or dollar amount of shares of Common Stock that may be sold pursuant to the Registration Statement (as
defined below), (b) the number or dollar amount of shares of Common Stock for which the Company has filed any Prospectus Supplement
(as defined below) or (c) exceeds the number of authorized but unissued shares of Common Stock of the Company (the “Maximum
Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations
set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility
of the Company and that the Agents shall have no obligation in connection with such compliance. The issuance and sale of Placement Shares
through or to the Agents will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared
effective by the Securities and Exchange Commission (the “Commission”), although nothing in this Agreement shall be
construed as requiring the Company to use the Registration Statement to issue any Placement Shares.
The Company has filed, in
accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations thereunder (the “Securities
Act”), with the Commission a registration statement on Form S-3 (File No. 333-265430), including a base prospectus,
relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by
reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934,
as amended, and the rules and regulations thereunder (the “Exchange Act”). The Company has prepared a prospectus
supplement specifically relating to the Placement Shares (the “Prospectus Supplement”) to the base prospectus included
as part of such registration statement. The Company will furnish to the Agents, for use by the Agents, copies of the prospectus included
as part of such registration statement, as supplemented by the Prospectus Supplement relating to the Placement Shares. Except where the
context otherwise requires, such registration statement, and any post-effective amendment thereto, including all documents filed as part
thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently
filed with the Commission pursuant to Rule 424(b) under the Securities Act or deemed to be a part of such registration statement
pursuant to Rule 430B of the Securities Act, or any subsequent registration statement on Form S-3 filed pursuant to Rule 415(a)(6) under
the Securities Act by the Company to cover any Placement Shares, is herein called the “Registration Statement.” The
base prospectus, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented
by the Prospectus Supplement, in the form in which such prospectus and/or Prospectus Supplement have most recently been filed by the Company
with the Commission pursuant to Rule 424(b) under the Securities Act, together with any then issued Issuer Free Writing Prospectus
(defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, the Prospectus
or any amendment or supplement thereto, shall be deemed to refer to and include the documents incorporated or deemed to be incorporated
by reference therein, and any reference herein to the terms “amend,” “amendment” or “supplement” with
respect to the Registration Statement or the Prospectus shall be deemed to refer to and include the filing after the execution hereof
of any document with the Commission deemed to be incorporated by reference therein (the “Incorporated Documents”).
For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto
shall be deemed to include any copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System,
or if applicable, the Interactive Data Electronic Application system when used by the Commission (collectively, “EDGAR”).
2. Placements.
For purposes of selling the Placement Shares through the Agents, the Company hereby appoints the Lead Agent as exclusive agent of the
Company pursuant to this Agreement. Each time that the Company wishes to issue and sell Placement Shares hereunder (each, a “Placement”),
it will notify the Lead Agent by email notice (or other method mutually agreed to in writing by the parties) of the number or dollar value
of Placement Shares, the time period during which sales are requested to be made, any limitation on the number of Placement Shares that
may be sold in any one day and any minimum price below which sales may not be made (a “Placement Notice”), the form
of which is attached hereto as Schedule 1. The Placement Notice shall originate from any of the individuals from the Company set forth
on Schedule 3 (with a copy to each of the other individuals from the Company listed on such schedule), and shall be addressed to each
of the individuals from the Lead Agent set forth on Schedule 3, as such Schedule 3 may be amended from time to time. The Placement Notice
shall be effective unless and until (i) the Lead Agent declines to accept the terms contained therein for any reason, in its sole
discretion by email notice to the Company within one Business Day (as defined below) from the time the Placement Notice is received, (ii) the
entire amount of the Placement Shares thereunder have been sold, (iii) the Company suspends or terminates the Placement Notice (including,
but not limited to, by means of a subsequent Placement Notice that explicitly indicates that the parameters of the subsequent Placement
Notice supersede those parameters contained in the earlier dated Placement Notice), or (iv) this Agreement has been terminated under
the provisions of Section 12. The amount of any discount, commission or other compensation to be paid by the Company to the Lead
Agent in connection with the sale of the Placement Shares shall be calculated in accordance with the terms set forth in Schedule 2. It
is expressly acknowledged and agreed that neither the Company nor the Lead Agent will have any obligation whatsoever with respect to a
Placement or any Placement Shares unless and until the Company delivers a Placement Notice to the Lead Agent and the Lead Agent does not
decline such Placement Notice pursuant to the terms set forth above, and then only upon the terms specified therein and herein. In the
event of a conflict between the terms of this Agreement and the terms of a Placement Notice, the terms of the Placement Notice will control.
3. Sale
of Placement Shares by the Lead Agent.
(a) Subject
to the provisions of Section 5(a), the Lead Agent, for the period specified in the Placement Notice, will use its commercially reasonable
efforts consistent with its normal trading and sales practices and applicable state and federal laws, rules and regulations and
the rules of the NYSE American (the “Exchange”), for the period specified in the Placement Notice to sell the
Placement Shares up to the amount specified in, and otherwise in accordance with the terms of, such Placement Notice. The Lead Agent
will provide written confirmation to the Company no later than the opening of the Trading Day (as defined below) immediately following
the Trading Day on which it has made sales of Placement Shares hereunder setting forth the number of Placement Shares sold on such day,
the compensation payable by the Company to the Lead Agent pursuant to Section 2 with respect to such sales, and the Net Proceeds
(as defined below) payable to the Company, with an itemization of the deductions made by the Lead Agent (as set forth in Section 5(b))
from the gross proceeds that it receives from such sales. Subject to the terms of a Placement Notice, the Lead Agent may sell Placement
Shares by any method permitted by law deemed to be an “at the market offering” as defined in Rule 415 of the Securities
Act.
4. Suspension
of Sales.
(a) The
Company or the Lead Agent may, upon notice to the other party in writing (including by email correspondence to each of the individuals
of the other party set forth on Schedule 3, if receipt of such correspondence is actually acknowledged by any of the individuals to whom
the notice is sent, other than via auto-reply) or by telephone (confirmed immediately by verifiable facsimile transmission or email correspondence
to each of the individuals of the other party set forth on Schedule 3), suspend any sale of Placement Shares (a “Suspension”);
provided, however, that such suspension shall not affect or impair any party’s obligations with respect to any Placement Shares
sold hereunder prior to the receipt of such notice. While a Suspension is in effect, any obligation under Sections 7(l), 7(m),
and 7(n) with respect to the delivery of certificates, opinions, or comfort letters to the Agents, shall be waived; provided,
however, that the Company acknowledges and agrees that delivery of such certificates, opinions, or comfort letters may be required prior
to resuming sales of Placement Shares. Each of the parties agrees that no such notice under this Section 4 shall be effective against
any other party unless it is made to one of the individuals named on Schedule 3 hereto, as such Schedule may be amended from time to
time.
(b) 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 Lead Agent agree that (i) no sale of Placement Shares will take place, (ii) the Company shall not request the
sale of any Placement Shares, and (iii) the Lead Agent shall not be obligated to sell or offer to sell any Placement Shares.
5. Sale
and Delivery to the Lead Agent; Settlement.
(a) Sale
of Placement Shares. On the basis of the representations and warranties herein contained and subject to the terms and conditions herein
set forth, upon the Lead Agent’s acceptance of the terms of a Placement Notice, and unless the sale of the Placement Shares described
therein has been declined, suspended, or otherwise terminated in accordance with the terms of this Agreement, the Lead Agent, for the
period specified in the Placement Notice, will use its commercially reasonable efforts consistent with its normal trading and sales practices
to sell such Placement Shares up to the amount specified in, and otherwise in accordance with the terms of, such Placement Notice. The
Company acknowledges and agrees that (i) there can be no assurance that the Lead Agent will be successful in selling Placement Shares,
(ii) the Lead Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Placement
Shares for any reason other than a failure by the Lead Agent to use its commercially reasonable efforts consistent with its normal trading
and sales practices and applicable law and regulations to sell such Placement Shares as required under this Agreement and (iii) the
Lead Agent shall be under no obligation to purchase Placement Shares on a principal basis pursuant to this Agreement, except as otherwise
agreed by the Lead Agent and the Company.
(b) Settlement
of Placement Shares. Unless otherwise specified in the applicable Placement Notice, settlement for sales of Placement Shares
will occur on the first (1st) Trading Day (or such earlier day as is industry practice or as is required by law for regular-way
trading) following the date on which such sales are made (each, a “Settlement Date”). The amount of proceeds to be
delivered to the Company on a Settlement Date against receipt of the Placement Shares sold (the “Net Proceeds”) will be equal
to the aggregate sales price received by the Lead Agent, after deduction for (i) the Lead Agent’s commission, discount or other
compensation for such sales payable by the Company pursuant to Section 2 hereof, and (ii) any transaction fees imposed by any
governmental or self-regulatory organization in respect of such sales.
(c) Delivery
of Placement Shares. On each Settlement Date, against payment of the Net Proceeds, the Company will, or will cause its transfer agent
to, electronically transfer the Placement Shares being sold by crediting the Lead Agent’s or its designee’s account (provided
the Lead Agent shall have given the Company written notice of such designee and such designee’s account information at least one
Trading Day prior to the Settlement Date) at The Depository Trust Company 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 in all cases shall be freely tradable, transferable,
registered shares in good deliverable form. On each Settlement Date, the Lead Agent will deliver the related Net Proceeds in same day
funds to an account designated by the Company on, or prior to, the Settlement Date. The Company agrees that if the Company, or its transfer
agent (if applicable), defaults in its obligation to deliver Placement Shares on a Settlement Date, the Company agrees that in addition
to and in no way limiting the rights and obligations set forth in Section 10(a) hereto, it will (i) hold the Lead Agent
harmless against any loss, claim, damage, or expense (including reasonable and documented legal fees and expenses), as incurred, arising
out of or in connection with such default by the Company or its transfer agent (if applicable) and (ii) pay to the Lead Agent any
commission, discount, or other compensation to which it would otherwise have been entitled absent such default.
(d) Limitations
on Offering Size. Under no circumstances shall the Company cause or request the offer or sale of any Placement Shares if, after
giving effect to the sale of such Placement Shares, the aggregate gross sales proceeds of such Placement Shares sold pursuant to this
Agreement would exceed the lesser of (A) together with all sales of Placement Shares under this Agreement, the Maximum Amount, (B) the
amount available for offer and sale under the Registration Statement and (C) the amount authorized from time to time to be issued
and sold under this Agreement by the Company’s board of directors, a duly authorized committee thereof or a duly authorized executive
committee, and notified to the Lead Agent in writing. Under no circumstances shall the Company cause or request the offer or sale of any
Placement Shares pursuant to this Agreement at a price lower than the minimum price authorized from time to time by the Company’s
board of directors, duly authorized committee thereof or a duly authorized executive committee, and notified to the Lead Agent in writing.
Further, under no circumstances shall the Company cause or permit the aggregate offering amount of Placement Shares sold pursuant to this
Agreement to exceed the Maximum Amount.
6. Representations
and Warranties of the Company. Except as disclosed in the Registration Statement or Prospectus (including the Incorporated Documents),
the Company represents and warrants to, and agrees with the Agents that as of the date of this Agreement and as of each Applicable Time
(as defined below), unless such representation, warranty or agreement specifies a different date or time:
(a) Registration
Statement and Prospectus. The Company and the transactions contemplated by this Agreement meet the requirements for and comply with
the conditions for the use of Form S-3 under the Securities Act. The Registration Statement has been filed with the Commission and
declared effective under the Securities Act. The Prospectus Supplement will name the Agents as the agents in the section entitled “Plan
of Distribution.” The Company has not received, and has no notice of, any order of the Commission preventing or suspending the use
of the Registration Statement, or threatening or instituting proceedings for that purpose. The Registration Statement and the offer and
sale of Placement Shares as contemplated hereby meet the requirements of Rule 415 under the Securities Act and comply in all material
respects with said Rule. Any statutes, regulations, contracts or other documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the Registration Statement have been so described or filed. Copies of the Registration
Statement, the Prospectus, and any such amendments or supplements and all documents incorporated by reference therein that were filed
with the Commission on or prior to the date of this Agreement have been delivered, or are available through EDGAR, to Agents and their
counsel. The Company has not distributed and, prior to the later to occur of each Settlement Date and completion of the distribution of
the Placement Shares, will not distribute any offering material in connection with the offering or sale of the Placement Shares other
than the Registration Statement and the Prospectus and any Issuer Free Writing Prospectus to which the Lead Agent has consented. The Company
has not, in the 12 months preceding the date hereof, received notice from the Exchange to the effect that the Company is not in compliance
with the listing or maintenance requirements.
(b) No Misstatement
or Omission. The Registration Statement, when it became or becomes effective, and the Prospectus, and any amendment or supplement
thereto, on the date of such Prospectus or amendment or supplement, conformed and will conform in all material respects with the requirements
of the Securities Act. At each Settlement Date, the Registration Statement and the Prospectus, as of such date, will conform in all material
respects with the requirements of the Securities Act. The Registration Statement, when it became or becomes effective, did not, and will
not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading. The Prospectus and any amendment or supplement thereto, on the date thereof and at each Applicable
Time (defined below), did not and will not include an 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. The Incorporated Documents did
not, and any further documents filed and incorporated by reference therein will not, when filed with the Commission, contain an untrue
statement of a material fact or omit to state a material fact required to be stated in such document or necessary to make the statements
in such document, in light of the circumstances under which they were made, not misleading. The foregoing shall not apply to statements
in, or omissions from, any such document made in reliance upon, and in conformity with, information furnished to the Company by an Agent
specifically for use in the preparation thereof.
(c) Conformity
with Securities Act and Exchange Act. The Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or any amendment
or supplement thereto, and the Incorporated Documents, when such documents were or are filed with the Commission under the Securities
Act or the Exchange Act or became or become effective under the Securities Act, as the case may be, conformed and will conform in all
material respects with the requirements of the Securities Act and the Exchange Act, as applicable.
(d) Financial
Information. The financial statements of the Company included or incorporated by reference in the Registration Statement, the Prospectus
and the Issuer Free Writing Prospectuses, if any, together with the related notes and schedules, present fairly, in all material respects,
the financial position of the Company as of the dates indicated and the results of operations, cash flows and changes in stockholders’
equity of the Company for the periods specified and have been prepared in compliance with the requirements of the Securities Act and Exchange
Act and in conformity with generally accepted accounting principles in the United States (“GAAP”) applied on a consistent
basis (except for (i) such adjustments to accounting standards and practices as are noted therein, (ii) in the case of unaudited
interim financial statements, to the extent such financial statements may not include footnotes required by GAAP or may be condensed or
summary statements and (iii) such adjustments which will not be material, either individually or in the aggregate) during the periods
involved; the other financial and statistical data with respect to the Company contained or incorporated by reference in the Registration
Statement, the Prospectus and the Issuer Free Writing Prospectuses, if any, are accurately and fairly presented and prepared on a basis
consistent with the financial statements and books and records of the Company; there are no financial statements (historical or pro forma)
that are required to be included or incorporated by reference in the Registration Statement, or the Prospectus that are not included or
incorporated by reference as required; the Company does not have any material liabilities or obligations, direct or contingent (including
any off-balance sheet obligations), not described in the Registration Statement (excluding the exhibits thereto), and the Prospectus;
and all disclosures contained or incorporated by reference in the Registration Statement, the Prospectus and the Issuer Free Writing Prospectuses,
if any, regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission)
comply in all material respects with Regulation G of the Exchange Act and Item 10 of Regulation S-K under the Securities Act, to
the extent applicable.
(e) Conformity
with EDGAR Filing. The Prospectus delivered to the Agents for use in connection with the sale of the Placement Shares pursuant to
this Agreement will be identical to the versions of the Prospectus created to be transmitted to the Commission for filing via EDGAR, except
to the extent permitted by Regulation S-T.
(f) Organization.
The Company is duly organized, validly existing as a corporation and in good standing under the laws of its jurisdiction of organization.
The Company is, and will be, duly licensed or qualified as a foreign corporation for transaction of business and in good standing under
the laws of each other jurisdiction in which its ownership or lease of property or the conduct of its business requires such license or
qualification, and has all corporate power and authority necessary to own or hold its properties and to conduct its business as described
in the Registration Statement and the Prospectus, except where the failure to be so qualified or in good standing or have such power or
authority would not, individually or in the aggregate, have a material adverse effect on or affecting the assets, business, operations,
earnings, properties, condition (financial or otherwise), prospects, stockholders’ equity or results of operations of the Company
or prevent or materially interfere with consummation of the transactions contemplated hereby (a “Material Adverse Effect”).
(g) Subsidiaries.
The Company does not own or control, directly or indirectly, any corporation, association or other entity other than the subsidiaries
listed in Exhibit 21.1 to the Company’s Annual Report on Form 10-K for the most recently ended fiscal year. The Company
owns directly or indirectly, all of the equity interests of its subsidiaries free and clear of any lien, charge, security interest, encumbrance,
right of first refusal or other restriction, and all the equity interests of its subsidiaries are validly issued and are fully paid, non-assessable
and free of preemptive and similar rights.
(h) No Violation
or Default. The Company is not (i) in violation of its charter or by-laws or similar organizational documents; (ii) in default,
and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance
of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument
to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject;
or (iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental
or regulatory authority, except, in the case of each of clauses (ii) and (iii) above, for any such violation or default that
would not, individually or in the aggregate, have a Material Adverse Effect. To the Company’s knowledge, no other party under any
material contract or other agreement to which it is a party is in default in any respect thereunder where such default would have a Material
Adverse Effect.
(i) No Material
Adverse Effect. Subsequent to the respective dates as of which information is given in the Registration Statement, the Prospectus
and the Issuer Free Writing Prospectuses, if any, (including any Incorporated Documents), there has not been (i) any Material Adverse
Effect, (ii) any transaction which is material to the Company, (iii) any obligation or liability, direct or contingent (including
any off-balance sheet obligations), incurred by the Company which is material to the Company, (iv) any material change in the capital
stock or outstanding long-term indebtedness (other than (A) the grant of additional awards under equity incentive plans, (B) changes
in the number of outstanding Common Stock due to the issuance of shares upon exercise or conversion of securities exercisable for or convertible
into Common Stock outstanding on the date hereof, (C) any repurchase of capital stock of the Company, (D) as a result of the
sale of Placement Shares, or (E) other than as publicly reported or announced), or (v) any dividend or distribution of any kind
declared, paid or made on the capital stock of the Company other than in each case above in the ordinary course of business or as otherwise
disclosed in the Registration Statement or Prospectus (including any Incorporated Documents).
(j) Capitalization.
The issued and outstanding shares of capital stock of the Company have been validly issued, are fully paid and non-assessable and, other
than as disclosed in the Registration Statement or the Prospectus, are not subject to any preemptive rights, rights of first refusal or
similar rights. The Company has an authorized, issued and outstanding capitalization as set forth in the Registration Statement and the
Prospectus as of the dates referred to therein (other than the grant of additional options and restricted stock units under the Company’s
existing equity incentive plans, or changes in the number of outstanding shares of Common Stock of the Company due to the issuance of
shares upon the exercise or conversion of securities exercisable for, or convertible into, Common Stock outstanding on the date hereof)
and such authorized capital stock conforms to the description thereof set forth in the Registration Statement and the Prospectus. The
description of the securities of the Company in the Registration Statement and the Prospectus is complete and accurate in all material
respects. As of the date referred to therein, the Company does not have outstanding any options to purchase, or any rights or warrants
to subscribe for, or any securities or obligations convertible into, or exchangeable for, or any contracts or commitments to issue or
sell, any shares of capital stock or other securities.
(k) Authorization;
Enforceability. The Company has full legal right, power and authority to enter into this Agreement and perform the transactions contemplated
hereby. This Agreement has been duly authorized, executed and delivered by the Company and is a legal, valid and binding agreement of
the Company enforceable in accordance with its terms, except (i) to the extent that enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general equitable principles
and (ii) the indemnification and contribution provisions of Section 10 hereof may be limited by federal or state securities
laws and public policy considered in respect thereof.
(l) Authorization
of Placement Shares. The Placement Shares, when issued and delivered pursuant to the terms approved by the board of directors of the
Company, a duly authorized committee thereof, or a duly authorized executive officer, against payment therefor as provided herein, will
be duly and validly authorized and issued and fully paid and non-assessable, free and clear of any pledge, lien, encumbrance, security
interest or other claim, including any statutory or contractual preemptive rights, resale rights, rights of first refusal or other similar
rights, and will be registered pursuant to Section 12 of the Exchange Act. The Placement Shares, when issued, will conform in all
material respects to the description thereof set forth in or incorporated into the Prospectus.
(m) No Consents
Required. No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental
or regulatory authority is required for the execution, delivery and performance by the Company this Agreement, the issuance and sale by
the Company of the Placement Shares, except for such consents, approvals, authorizations, orders and registrations or qualifications as
may be required under applicable state securities laws or by the by-laws and rules of the Financial Industry Regulatory Authority
(“FINRA”) or the Exchange in connection with the sale of the Placement Shares by the Lead Agent.
(n) No Preferential
Rights. Except as set forth in the Registration Statement and the Prospectus (including any Incorporated Documents), (i) no person,
as such term is defined in Rule 1-02 of Regulation S-X promulgated under the Securities Act (each, a “Person”),
has the right, contractual or otherwise, to cause the Company to issue or sell to such Person any Common Stock or shares of any other
capital stock or other securities of the Company (other than upon the exercise of options or upon the exercise of options or stock awards
that may be granted from time to time under the Company’s equity incentive plans), (ii) no Person has any preemptive rights,
resale rights, rights of first refusal, or any other rights (whether pursuant to a “poison pill” provision or otherwise) to
purchase any Common Stock or shares of any other capital stock or other securities of the Company, (iii) no Person has the right
to act as an underwriter or as a financial advisor to the Company in connection with the offer and sale of Common Stock, and (iv) no
Person has the right, contractual or otherwise, to require the Company to register under the Securities Act any Common Stock or shares
of any other capital stock or other securities of the Company, or to include any such shares or other securities in the Registration Statement
or the offering contemplated thereby, whether as a result of the filing or effectiveness of the Registration Statement or the sale of
the Placement Shares as contemplated thereby or otherwise.
(o) Independent
Public Accountant. Moss Adams LLP (the “Accountant”), whose report on the financial statements of the Company is
filed with the Commission as part of the Company’s most recent Annual Report on Form 10-K filed with the Commission and incorporated
into the Registration Statement and the Prospectus, are and, during the periods covered by their report, were an independent registered
public accounting firm with respect to the Company within the meaning of the Securities Act and the Public Company Accounting Oversight
Board (United States). To the Company’s knowledge, the Accountant is not in violation of the auditor independence requirements of
the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”) with respect to the Company.
(p) Independent
Petroleum Engineers. DeGolyer & MacNaughton, Netherland, Sewell & Associates, Inc. and Cawley, Gillespie &
Associates, Inc., whose reports on the oil and gas reserve estimates of the Company are incorporated by reference in the Registration
Statement and the Prospectus, are both independent petroleum engineers in accordance with guidelines established by the Commission.
(q) Enforceability
of Agreements. All agreements between the Company and third parties expressly referenced in the Prospectus are legal, valid and binding
obligations of the Company enforceable in accordance with their respective terms other than such agreements that have expired by their
terms or whose termination is disclosed in documents filed by the Company on EDGAR, except to the extent that (i) enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by
general equitable principles and (ii) the indemnification provisions of certain agreements may be limited by federal or state securities
laws or public policy considerations in respect thereof, and except for any unenforceability that, individually or in the aggregate, would
not reasonably be expected to have a Material Adverse Effect.
(r) No Litigation.
There are no legal, governmental or regulatory actions, suits or proceedings pending, nor, to the Company’s knowledge, any legal,
governmental or regulatory investigations, to which the Company is a party or to which any property of the Company is the subject that,
individually or in the aggregate, if determined adversely to the Company would have a Material Adverse Effect or materially and adversely
affect the ability of the Company to perform its obligations under this Agreement; to the Company’s knowledge, no such actions,
suits or proceedings are threatened or contemplated by any governmental or regulatory authority or threatened by others; and (i) there
are no current or pending legal, governmental or regulatory investigations, actions, suits or proceedings that are required under the
Securities Act to be described in the Prospectus that are not so described; and (ii) there are no contracts or other documents that
are required under the Securities Act to be filed as exhibits to the Registration Statement that are not so filed.
(s) Licenses
and Permits. The Company possesses or has obtained, all licenses, certificates, consents, orders, approvals, permits and other authorizations
issued by, and have made all declarations and filings with, the appropriate federal, state, local or foreign governmental or regulatory
authorities that are necessary for the ownership or lease of their respective properties or the conduct of their respective businesses
as described in the Registration Statement and the Prospectus (the “Permits”), except where the failure to possess,
obtain or make the same would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company
has not received written notice of any proceeding relating to revocation or modification of any such Permit or has any reason to believe
that such Permit will not be renewed in the ordinary course, except where the failure to obtain any such renewal would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(t) No
Material Defaults. The Company has not defaulted on any installment on indebtedness for borrowed money or on any rental on one or
more long-term leases, which defaults, individually or in the aggregate, have a Material Adverse Effect. The Company has not filed a report
pursuant to Section 13(a) or 15(d) of the Exchange Act since the filing of its last Annual Report on Form 10-K, indicating
that it (i) has failed to pay any dividend or sinking fund installment on preferred stock or (ii) has defaulted on any installment
on indebtedness for borrowed money or on any rental on one or more long-term leases, which defaults, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect.
(u) S-3
Eligibility. (i) At the time of filing the Registration Statement and (ii) at the time of the most recent amendment thereto
for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment,
incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), the Company met the then
applicable requirements for use of Form S-3 under the Securities Act, including compliance with General Instruction I.B.1 of Form S-3.
(v) Certain
Market Activities. Neither the Company nor, to the Company’s knowledge, any of its directors, officers or controlling persons
has taken, directly or indirectly, any action designed, or that has constituted or would reasonably be expected to cause or result in,
under the Exchange Act or otherwise, the stabilization or manipulation of the price of any security of the Company to facilitate the sale
or resale of the Placement Shares.
(w) Broker/Dealer
Relationships. Neither the Company nor any related entities (i) is required to register as a “broker” or “dealer”
in accordance with the provisions of the Exchange Act or (ii) directly or indirectly through one or more intermediaries, controls
or is a “person associated with a member” or “associated person of a member” (within the meaning set forth in
the FINRA Manual).
(x) No Reliance.
The Company has not relied upon the Agents or legal counsel for the Agents for any legal, tax or accounting advice in connection with
the offering and sale of the Placement Shares.
(y) Taxes.
The Company has filed all federal, state, local and foreign tax returns which have been required to be filed and paid all taxes shown
thereon through the date hereof, to the extent that such taxes have become due and are not being contested in good faith, except where
the failure to do so would not reasonably be expected to have a Material Adverse Effect. Except as otherwise disclosed in or contemplated
by the Registration Statement or the Prospectus, no tax deficiency has been determined adversely to the Company which has had, or would
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. The Company has no knowledge of any federal,
state or other governmental tax deficiency, penalty or assessment which has been or might be asserted or threatened against it which reasonably
would be expected to have a Material Adverse Effect.
(z) Title
to Real and Personal Property. The Company has good and valid title in fee simple to all items of real property and good and valid
title to all personal property described in the Registration Statement or Prospectus as being owned by it that are material to the business
of the Company, in each case free and clear of all liens, encumbrances and claims, except those that (i) do not materially interfere
with the use made and proposed to be made of such property by the Company or (ii) would not reasonably expected, individually or
in the aggregate, to have a Material Adverse Effect. Any real property described in the Registration Statement or Prospectus as being
leased by the Company is held by it under valid, existing and enforceable leases, except those that (A) do not materially interfere
with the use made or proposed to be made of such property by the Company or (B) would not be reasonably expected to have a Material
Adverse Effect.
(aa) Intellectual
Property. The Company owns or possesses adequate enforceable rights to use all patents, patent applications, trademarks (both registered
and unregistered), service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses and know-how
(including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures) (collectively,
the “Intellectual Property”), necessary for the conduct of its business as conducted as of the date hereof, except
to the extent that the failure to own or possess adequate rights to use such Intellectual Property would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect; the Company has not received any written notice of any claim of
infringement or conflict which asserted Intellectual Property rights of others, which infringement or conflict, if the subject of an
unfavorable decision, would result in a Material Adverse Effect; there are no pending, or to the Company’s knowledge, threatened
judicial proceedings or interference proceedings against the Company challenging the Company’s rights in or to or the validity
of the scope of any of the Company’s patents, patent applications or proprietary information.
(bb) Environmental
Laws. The Company (i) is in compliance with any and all applicable federal, state, local and foreign laws, rules, regulations,
decisions and orders relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants (collectively, “Environmental Laws”); (ii) has received and is in compliance with all
permits, licenses or other approvals required of it under applicable Environmental Laws to conduct its businesses as described in the
Registration Statement and the Prospectus; and (iii) has not received written notice of any actual or potential liability for the
investigation or remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants, except,
in the case of any of clauses (i), (ii) or (iii) above, for any such failure to comply or failure to receive required permits,
licenses, other approvals or liability as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
(cc) Disclosure
Controls. The Company maintains systems of internal controls designed to provide reasonable assurance that (i) transactions are
executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP and to maintain asset accountability; (iii) access to assets is
permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for
assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The
Company is not aware of any material weaknesses in its internal control over financial reporting (other than as set forth in the Prospectus).
Since the date of the latest audited financial statements of the Company included in the Prospectus, there has been no change in the Company’s
internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s
internal control over financial reporting (other than as set forth in the Prospectus). The Company has established disclosure controls
and procedures (as defined in Exchange Act Rules 13a-15 and 15d-15) for the Company and designed such disclosure controls and procedures
to ensure that material information relating to the Company is made known to the certifying officers by others within those entities,
particularly during the period in which the Company’s Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as
the case may be, is being prepared. The Company’s certifying officers have evaluated the effectiveness of the Company’s controls
and procedures as of a date within 90 days prior to the filing date of the Form 10-K for the fiscal year most recently ended (such
date, the “Evaluation Date”). The Company presented in its Form 10-K for the fiscal year most recently ended 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 significant changes in the Company’s internal controls (as
such term is defined in Item 307(b) of Regulation S-K under the Securities Act) or, to the Company’s knowledge, in other
factors that could significantly affect the Company’s internal controls. To the knowledge of the Company, the Company’s “internal
controls over financial reporting” and “disclosure controls and procedures” are effective.
(dd) Sarbanes-Oxley.
The Company is not aware of any failure on the part of the Company or any of the Company’s directors or officers, in their capacities
as such, to comply with any applicable provisions of the Sarbanes-Oxley Act and the applicable rules and regulations promulgated
thereunder in all material respects. Each of the principal executive officer and the principal financial officer of the Company (or each
former principal executive officer of the Company and each former principal financial officer of the Company as applicable) has made all
certifications required by Sections 302 and 906 of the Sarbanes-Oxley Act with respect to all reports, schedules, forms, statements and
other documents required to be filed by it or furnished by it to the Commission during the past 12 months. For purposes of the preceding
sentence, “principal executive officer” and “principal financial officer” shall have the meanings given to such
terms in the Sarbanes-Oxley Act.
(ee) Finder’s
Fees. The Company has not incurred any liability for any finder’s fees, brokerage commissions or similar payments in connection
with the transactions herein contemplated, except as may otherwise exist with respect to the Agents pursuant to this Agreement.
(ff) Labor
Disputes. No labor disturbance by or dispute with employees of the Company exists or, to the Company’s knowledge, is threatened
which would be reasonably likely to have a Material Adverse Effect
(gg) Investment
Company Act. The Company is not or after giving effect to the offering and sale of the Placement Shares, will not be an “investment
company” or an entity “controlled” by an “investment company,” as such terms are defined in the Investment
Company Act of 1940, as amended (the “Investment Company Act”).
(hh) Operations.
The operations of the Company are and have been conducted at all times in compliance with applicable financial record keeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions
to which the Company is subject, the rules and regulations thereunder and any related or similar rules, regulations or guidelines,
issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”), except as
would not have a Material Adverse Effect; and no action, suit or proceeding by or before any court or governmental agency, authority or
body or any arbitrator involving the Company with respect to the Money Laundering Laws is pending or, to the Company’s knowledge,
threatened.
(ii) Off-Balance
Sheet Arrangements. There are no transactions, arrangements and other relationships between and/or among the Company, and/or, to the
Company’s knowledge, any of its affiliates and any unconsolidated entity, including, but not limited to, any structural finance,
special purpose or limited purpose entity (each, an “Off Balance Sheet Transaction”) that could reasonably be expected
to affect materially the Company’s liquidity or the availability of or requirements for its capital resources, including those Off
Balance Sheet Transactions described in the Commission’s Statement about Management’s Discussion and Analysis of Financial
Conditions and Results of Operations (Release Nos. 33-8056; 34-45321; FR-61), required to be described in the Prospectus which have not
been described as required.
(jj) Underwriter
Agreements. Other than with respect to this Agreement, the Company is not a party to any agreement with an agent or underwriter for
any other “at the market” or continuous equity transaction.
(kk) ERISA.
To the Company’s knowledge, each material employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”), that is maintained, administered or contributed to by the Company
or any of its affiliates for employees or former employees of the Company has been maintained in material compliance with its terms and
the requirements of any applicable statutes, orders, rules and regulations, including but not limited to ERISA and the Internal Revenue
Code of 1986, as amended (the “Code”); no prohibited transaction, within the meaning of Section 406 of ERISA or
Section 4975 of the Code, has occurred which would result in a material liability to the Company with respect to any such plan excluding
transactions effected pursuant to a statutory or administrative exemption; and for each such plan that is subject to the funding rules of
Section 412 of the Code or Section 302 of ERISA, no “accumulated funding deficiency” as defined in Section 412
of the Code has been incurred, whether or not waived, and the fair market value of the assets of each such plan (excluding for these purposes
accrued but unpaid contributions) exceeds the present value of all benefits accrued under such plan determined using reasonable actuarial
assumptions.
(ll) Forward-Looking
Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of
the Exchange Act) (a “Forward- Looking Statement”) included or incorporated by reference in the Registration Statement
and the Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith. The Forward-Looking
Statements incorporated by reference in the Registration Statement and the Prospectus from the Company’s Annual Report on Form 10-K
for the fiscal year most recently ended (i) are within the coverage of the safe harbor for forward looking statements set forth in
Section 27A of the Securities Act, Rule 175(b) under the Securities Act or Rule 3b-6 under the Exchange Act, as applicable,
(ii) were made by the Company with a reasonable basis and in good faith and reflect the Company’s good faith reasonable estimate
of the matters described therein, and (iii) have been prepared in accordance with Item 10 of Regulation S-K under the Securities
Act.
(mm) Agent
Purchases. The Company acknowledges and agrees that the Agents have informed the Company that any Agent may, to the extent permitted
under the Securities Act and the Exchange Act, purchase and sell Common Stock for its own account while this Agreement is in effect, provided,
that (i) no such purchase or sales shall take place while a Placement Notice is in effect (except to the extent the Lead Agent may
engage in sales of Placement Shares purchased or deemed purchased from the Company as a “riskless principal” or in a similar
capacity) and (ii) the Company shall not be deemed to have authorized or consented to any such purchases or sales by the Agents.
(nn) Margin
Rules. Neither the issuance, sale and delivery of the Placement Shares nor the application of the proceeds thereof by the Company
as described in the Registration Statement and the Prospectus will violate Regulation T, U or X of the Board of Governors of the Federal
Reserve System or any other regulation of such Board of Governors.
(oo) Insurance.
The Company carries, or is covered by, insurance in such amounts and covering such risks as the Company reasonably believes is adequate
for the conduct of its business and as is customary for companies of similar size engaged in similar businesses in similar industries.
(pp) No Improper
Practices. (i) Neither the Company, nor to the Company’s knowledge, any of its executive officers has, in the past five
years, made any unlawful contributions to any candidate for any political office (or failed fully to disclose any contribution in violation
of law) or made any contribution or other payment to any official of, or candidate for, any federal, state, municipal, or foreign office
or other person charged with similar public or quasi-public duty in violation of any law or of the character required to be disclosed
in the Prospectus; (ii) no relationship, direct or indirect, exists between or among the Company or, to the Company’s knowledge,
any affiliate of the Company, on the one hand, and the directors, officers and stockholders of the Company, that is required by the Securities
Act to be described in the Registration Statement and the Prospectus that is not so described; (iii) no relationship, direct or indirect,
exists between or among the Company, or any affiliate of the Company, on the one hand, and the directors, officers, stockholders or directors
of the Company that is required by the rules of FINRA to be described in the Registration Statement and the Prospectus that is not
so described; (iv) there are no material outstanding loans or advances or material guarantees of indebtedness by the Company to or
for the benefit of any of its officers or directors or any of the members of the families of any of them; (v) the Company has not
offered, or caused any placement agent to offer, Common Stock to any person with the intent to influence unlawfully (A) a customer
or supplier of the Company to alter the customer’s or supplier’s level or type of business with the Company or (B) a
trade journalist or publication to write or publish favorable information about the Company or any of its products or services, and, (vi) neither
the Company nor, to the Company’s knowledge, any employee or agent of the Company has made any payment of funds of the Company or
received or retained any funds in violation of any law, rule or regulation (including, without limitation, the Foreign Corrupt Practices
Act of 1977, which payment, receipt or retention of funds is of a character required to be disclosed in the Registration Statement or
the Prospectus).
(qq) Compliance
with Applicable Laws. The Company has not been advised, and has no reason to believe, that it and each of its subsidiaries are not
conducting business in compliance with all applicable laws, rules and regulations of the jurisdictions in which it is conducting
business, except where failure to be so in compliance would not result in a Material Adverse Effect.
(rr) Status
Under the Securities Act. The Company was not and is not an ineligible issuer as defined in Rule 405 under the Securities Act
at the times specified in Rules 164 and 433 under the Securities Act in connection with the offering of the Placement Shares.
(ss) No Misstatement
or Omission in an Issuer Free Writing Prospectus. Each Issuer Free Writing Prospectus, as of its issue date and as of each Applicable
Time (as defined in Section 24 below), did not, does not and will not include any information that conflicted, conflicts or
will conflict with the information contained in the Registration Statement or the Prospectus (including any Incorporated Documents) deemed
to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from
any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by any Agent specifically
for use therein.
(tt) Reserve
Report Data. The oil and gas reserve estimates of the Company, which are incorporated by reference in the Registration Statement and
the Prospectus, are derived from reports that have been prepared by independent reserve engineers in accordance with Commission guidelines
applied on a consistent basis throughout the periods involved, and the Company has no reason to believe that such estimates do not fairly
reflect, in all material respects, the oil and gas reserves of the Company, or the present value of future net cash flows therefrom, as
of the dates indicated therein.
(uu) No Conflicts.
Neither the execution of this Agreement, nor the issuance, offering or sale of the Placement Shares, nor the consummation of any of the
transactions contemplated herein and therein, nor the compliance by the Company with the terms and provisions hereof and thereof will
conflict with, or will result in a breach of, any of the terms and provisions of, or has constituted or will constitute a default under,
or has resulted in or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the
Company pursuant to the terms of any contract or other agreement to which the Company may be bound or to which any of the property or
assets of the Company is subject, except (i) such conflicts, breaches or defaults as may have been waived and (ii) such conflicts,
breaches and defaults that would not have a Material Adverse Effect; nor will such action result (x) in any violation of the provisions
of the organizational or governing documents of the Company, or (y) in any material violation of the provisions of any statute or
any order, rule or regulation applicable to the Company or of any court or of any federal, state or other regulatory authority or
other government body having jurisdiction over the Company.
(vv) OFAC.
Neither the Company or any director, officer, agent, employee, affiliate or representative of the Company is a government, individual
or entity (in this paragraph (vv), “Person”) that is, or is owned or controlled by a Person that is, currently subject
to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”),
the United Nations Security Council (“UNSC”), the European Union (“EU”), His Majesty’s Treasury
(“HMT”), or other relevant sanctions authority (collectively, “Sanctions”), nor located, organized
or resident in a country or territory that is the subject of Sanctions; provided however, that for the purposes of this paragraph (vv),
no Person shall be an affiliate of the Company solely by reason of owning less than a majority of any class of voting securities of the
Company. The Company will not directly or indirectly use the proceeds of the offering of the Securities hereunder, or lend, contribute
or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person, for the purpose of financing the activities
of any person currently subject to any U.S. sanctions administered by OFAC. The Company represents and covenants that, except as detailed
in the Prospectus, for the past three years, the Company has not knowingly engaged in, is not now knowingly engaged in, and will not engage
in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or
was the subject of Sanctions.
(ww) Stock
Transfer Taxes. On each Settlement Date, all stock transfer or other taxes (other than income taxes) which are required to be paid
in connection with the sale and transfer of the Placement Shares to be sold hereunder will be, or will have been, fully paid or provided
for by the Company and all laws imposing such taxes will be or will have been fully complied with.
(xx) FINRA
Exemption. To enable the Agents to rely on Rule 5110(b)(7)(C)(i) of FINRA, the Company represents that the Company (i) has
a non-affiliate, public common equity float of at least $150 million or a non-affiliate, public common equity float of at least $100 million
and annual trading volume of at least three million shares and (ii) has been subject to the Exchange Act reporting requirements for
a period of at least 36 months.
Any certificate signed by
an officer of the Company and delivered to the Agents or to counsel for the Agents pursuant to or in connection with this Agreement shall
be deemed to be a representation and warranty by the Company, as applicable, to the Agents as to the matters set forth therein.
7. Covenants
of the Company. The Company covenants and agrees with Agents that:
(a) Registration
Statement Amendments. After the date of this Agreement and during any period in which a Prospectus relating to any Placement Shares
is required to be delivered by an Agent under the Securities Act (including in circumstances where such requirement may be satisfied pursuant
to Rule 172 under the Securities Act) (the “Prospectus Delivery Period”) (i) the Company will notify the
Agents promptly of the time when any subsequent amendment to the Registration Statement, other than documents incorporated by reference,
has been filed with the Commission and/or has become effective or any subsequent supplement to the Prospectus has been filed and of any
request by the Commission for any amendment or supplement to the Registration Statement or Prospectus or for additional information, (ii) the
Company will prepare and file with the Commission, promptly upon the Lead Agent’s request, any amendments or supplements to the
Registration Statement or Prospectus that, in the Lead Agent’s reasonable opinion, may be necessary or advisable in connection with
the distribution of the Placement Shares by the Lead Agent (provided, however, that the failure of the Lead Agent to make such request
shall not relieve the Company of any obligation or liability hereunder, or affect the Agents’ right to rely on the representations
and warranties made by the Company in this Agreement and provided, further, that the only remedy the Agents shall have with respect to
the failure to make such filing shall be to cease making sales under this Agreement until such amendment or supplement is filed); (iii) the
Company will not file any amendment or supplement to the Registration Statement or Prospectus relating to the Placement Shares or a security
convertible into the Placement Shares unless a copy thereof has been submitted to the Agents within a reasonable period of time before
the filing and the Lead Agent has not objected thereto (provided, however, that (A) the failure of the Lead Agent to make such objection
shall not relieve the Company of any obligation or liability hereunder, or affect the Agents’ right to rely on the representations
and warranties made by the Company in this Agreement and (B) the Company has no obligation to provide the Agents any advance copy
of such filing or to provide the Agents an opportunity to object to such filing if the filing does not name the Agents or does not relate
to the transaction herein provided; and provided, further, that the only remedy the Agents shall have with respect to the failure by the
Company to obtain such consent shall be to cease making sales under this Agreement) and the Company will furnish to the Agents at the
time of filing thereof a copy of any document that upon filing is deemed to be incorporated by reference into the Registration Statement
or Prospectus, except for those documents available via EDGAR; and (iv) the Company will cause each amendment or supplement to the
Prospectus to be filed with the Commission as required pursuant to the applicable paragraph of Rule 424(b) of the Securities
Act or, in the case of any document to be incorporated therein by reference, to be filed with the Commission as required pursuant to the
Exchange Act, within the time period prescribed (the determination to file or not file any amendment or supplement with the Commission
under this Section 7(a), based on the Company’s reasonable opinion or reasonable objections, shall be made exclusively by the
Company).
(b) Notice
of Commission Stop Orders. The Company will advise the Agents, promptly after it receives notice or obtains knowledge thereof, of
the issuance or threatened issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, of
the suspension of the qualification of the Placement Shares for offering or sale in any jurisdiction, or of the initiation or threatening
of any proceeding for any such purpose; and it will promptly use its commercially reasonable efforts to prevent the issuance of any stop
order or to obtain its withdrawal if such a stop order should be issued. The Company will advise the Agents promptly after it receives
any request by the Commission for any amendments to the Registration Statement or any amendment or supplements to the Prospectus or any
Issuer Free Writing Prospectus or for additional information related to the offering of the Placement Shares or for additional information
related to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus.
(c) Delivery
of Prospectus; Subsequent Changes. During the Prospectus Delivery Period, the Company will comply with all requirements imposed upon
it by the Securities Act, as from time to time in force, and to file on or before their respective due dates all reports and any definitive
proxy or information statements required to be filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14, 15(d) or
any other provision of or under the Exchange Act. If the Company has omitted any information from the Registration Statement pursuant
to Rule 430A under the Securities Act, it will use its commercially reasonable efforts to comply with the provisions of and make
all requisite filings with the Commission pursuant to said Rule 430A and to notify the Agents promptly of all such filings. If during
the Prospectus Delivery Period any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances
then existing, not misleading, or if during the Prospectus Delivery Period the Company determines in its judgment it is necessary to amend
or supplement the Registration Statement or Prospectus to comply with the Securities Act, the Company will promptly notify the Agents
to suspend the offering of Placement Shares during such period and the Company will promptly amend or supplement the Registration Statement
or Prospectus (at the expense of the Company) so as to correct such statement or omission or effect such compliance; provided, however,
that the Company may delay the filing of any amendment or supplement, if in the judgment of the Company, it is in the best interests of
the Company.
(d) Listing
of Placement Shares. During the Prospectus Delivery Period, the Company will use its commercially reasonable efforts to cause the
Placement Shares to be listed on the Exchange and to qualify the Placement Shares for sale under the securities laws of such jurisdictions
as the Lead Agent reasonably designates and to continue such qualifications in effect so long as required for the distribution of the
Placement Shares; provided, however, that the Company shall not be required in connection therewith to qualify as a foreign corporation
or dealer in securities or file a general consent to service of process in any jurisdiction.
(e) Delivery
of Registration Statement and Prospectus. The Company will furnish to the Agents and their counsel (at the expense of the Company)
copies of the Registration Statement, the Prospectus (including all documents incorporated by reference therein) and all amendments and
supplements to the Registration Statement or Prospectus that are filed with the Commission during the Prospectus Delivery Period (including
all documents filed with the Commission during such period that are deemed to be incorporated by reference therein), in each case as soon
as reasonably practicable and in such quantities as the Agents may from time to time reasonably request and, at the Agents’ request,
will also furnish copies of the Prospectus to each exchange or market on which sales of the Placement Shares may be made; provided, however,
that the Company shall not be required to furnish any document (other than the Prospectus) to the Agents to the extent such document is
available on EDGAR.
(f) Earnings
Statement. The Company will make generally available to its security holders as soon as practicable, but in any event not later than
15 months after the end of the Company’s current fiscal quarter, an earnings statement covering a 12-month period that satisfies
the provisions of Section 11(a) and Rule 158 of the Securities Act; provided, however, that so long as the Company is subject
to the reporting requirements of either Section 13 or Section 15(d) of the Exchange Act and is timely filing reports with
the Commission on EDGAR, it shall be deemed to be in compliance with the foregoing requirement.
(g) Use
of Proceeds. The Company will use the Net Proceeds as described in the Prospectus in the section entitled “Use of Proceeds.”
(h) Notice
of Other Sales. Without the prior written consent of the Lead Agent, the Company will not, directly or indirectly, offer to sell,
sell, contract to sell, grant any option to sell or otherwise dispose of any Common Stock (other than the Placement Shares offered pursuant
to this Agreement) or securities convertible into or exchangeable for Common Stock, warrants or any rights to purchase or acquire, Common
Stock during the period beginning on the date on which any Placement Notice is delivered to the Lead Agent hereunder and ending on the
second (2nd) Trading Day immediately following the final Settlement Date with respect to Placement Shares sold pursuant to
such Placement Notice (or, if the Placement Notice has been terminated or suspended prior to the sale of all Placement Shares covered
by a Placement Notice, the date of such suspension or termination); and will not directly or indirectly in any other “at the market”
or continuous equity transaction offer to sell, sell, contract to sell, grant any option to sell or otherwise dispose of any Common Stock
(other than the Placement Shares offered pursuant to this Agreement) or securities convertible into or exchangeable for Common Stock,
warrants or any rights to purchase or acquire, Common Stock prior to the termination of this Agreement; provided, however, that such restrictions
will not be required in connection with the Company’s issuance or sale of (i) Common Stock, restricted stock units, options
to purchase Common Stock or Common Stock issuable upon the exercise of options or the vesting and settlement of restricted stock units
or stock awards, pursuant to any employee or director stock option or benefits plan, stock ownership plan or dividend reinvestment plan
(but not Common Stock subject to a waiver to exceed plan limits in its dividend reinvestment plan) of the Company whether now in effect
or hereafter implemented, including any exercise effected by the delivery of shares of Common Stock of the Company on a “cashless”
or “net exercise” basis or to cover tax withholding, (ii) Common Stock issuable upon conversion of securities or the
exercise of warrants, options or other rights in effect or outstanding, and disclosed in filings by the Company available on EDGAR or
otherwise in writing to the Agents, and (iii) Common Stock, or securities convertible into or exercisable for Common Stock, offered
and sold in a negotiated transaction to vendors, customers, strategic partners or potential strategic partners, acquisition candidates
or other investors conducted in a manner so as not to be integrated with the offering of Common Stock hereby.
(i) Change
of Circumstances. The Company will, at any time during the pendency of a Placement Notice advise the Agents promptly after it shall
have received notice or obtained knowledge thereof, of any information or fact that would alter or affect in any material respect any
opinion, certificate, letter or other document required to be provided to the Agents pursuant to this Agreement.
(j) Due
Diligence Cooperation. The Company will cooperate with any reasonable due diligence review conducted by the Agents or their representatives
in connection with the transactions contemplated hereby, including, without limitation, providing information and making available documents
and senior corporate officers, during regular business hours and at the Company’s principal offices, as the Agents may reasonably
request.
(k) Required
Filings Relating to Placement of Placement Shares. The Company agrees that on such dates as the Securities Act shall require, the
Company will (i) file a prospectus supplement with the Commission under the applicable paragraph of Rule 424(b) under the
Securities Act (each and every filing under Rule 424(b), a “Filing Date”), which prospectus supplement will set
forth, within the relevant period, the amount of Placement Shares sold through the Lead Agent, the Net Proceeds to the Company and the
compensation payable by the Company to the Lead Agent with respect to such Placement Shares, and (ii) deliver such number of copies
of each such prospectus supplement to each exchange or market on which such sales were effected as may be required by the rules or
regulations of such exchange or market.
(l) Representation
Dates; Certificate. On the date of this Agreement and within five (5) Trading Days of each time the Company:
(i) files
the Prospectus relating to the Placement Shares or amends or supplements (other than a prospectus supplement relating solely to an offering
of securities other than the Placement Shares), the Registration Statement or the Prospectus relating to the Placement Shares by means
of a post-effective amendment, sticker, or supplement but not by means of incorporation of documents by reference into the Registration
Statement or the Prospectus relating to the Placement Shares;
(ii) files
an annual report on Form 10-K under the Exchange Act (including any Form 10-K/A containing amended financial information or
a material amendment to the previously filed Form 10-K);
(iii) files
a quarterly report on Form 10-Q under the Exchange Act; or
(iv) files
a current report on Form 8-K containing amended financial information (other than information “furnished” pursuant to
Items 2.02 or 7.01 of Form 8-K or to provide disclosure pursuant to Item 8.01 of Form 8-K relating to the reclassification
of certain properties as discontinued operations in accordance with Statement of Financial Accounting Standards No. 144) under the
Exchange Act; (Each date of filing of one or more of the documents referred to in clauses (i) through (iv) shall be a “Representation
Date”)
the Company shall furnish the Agents (but in the
case of clause (iv) above only if the Agents reasonably determine that the information contained in such Form 8-K is material)
with a certificate, in the form attached hereto as Exhibit 7(l) (the “Representation Date Certificate”);
provided however, if no Placement Notice is pending at such Representation Date, then before the Company delivers a Placement Notice or
the Lead Agent sells any Placement Shares, the Company shall provide the Agents with a Representation Date Certificate. The requirement
to provide a Representation Date Certificate shall be waived for any Representation Date occurring at a time at which no Placement Notice
is pending, which waiver shall continue until the earlier to occur of the date the Company delivers a Placement Notice hereunder (which
for such calendar quarter shall be considered a Representation Date) and the next occurring Representation Date; provided, however, that
such waiver shall not apply for any Representation Date on which the Company files its Annual Report on Form 10-K. Notwithstanding
the foregoing, if the Company subsequently decides to sell Placement Shares following a Representation Date when the Company relied on
such waiver and did not provide the Agents with a Representation Date Certificate, then before the Company delivers the Placement Notice
or the Lead Agent sells any Placement Shares, the Company shall provide the Agents with a Representation Date Certificate, dated the date
of the Placement Notice.
(m) Legal
Opinion. (1) On the date of this Agreement and (2) within five (5) Trading Days of each Representation Date, the Company
shall cause to be furnished to the Agents a written opinion and negative assurance letter of (i) Mayer Brown LLP, counsel to the
Company (“Company Counsel”) and (ii) Fennemore Craig, P.C., Nevada counsel to the Company (“Nevada Company
Counsel”), in form and substance satisfactory to the Lead Agent and their counsel and subject to customary and appropriate assumptions
and qualifications, dated the date that the opinions are required to be delivered; provided however, if no placement notice is pending
at such Representation Date, then before the Company delivers a Placement Notice or the Lead Agent sells any Placement Shares, the Company
shall provide the Agents with such negative assurance letter; provided, further, that in lieu of such negative assurance letter for subsequent
periodic filings under the Exchange Act, Company Counsel and Nevada Company Counsel may furnish the Agents with a letter (a “Reliance
Letter”) to the effect that the Agents may rely on a prior negative assurance letter delivered under this Section 7(m) to
the same extent as if it were dated the date of such letter (except that statements in such prior negative assurance letter shall be deemed
to relate to the Registration Statement and the Prospectus as amended or supplemented as of the date of the Reliance Letter).
(n) Accounting
Comfort Letter. (1) On the date of this Agreement and (2) within five (5) Trading Days of each Representation Date
other than as contemplated by Section 7(l)(iii), the Company shall cause its independent accountants to furnish the Agents letters
(the “Comfort Letters”), dated the date the Comfort Letter is delivered, which shall meet the requirements set forth
in this Section 7(n); provided however, if no Placement Notice is pending at such Representation Date, then before the Company delivers
a Placement Notice or the Lead Agent sells any Placement Shares, the Company shall provide the Agents with the Comfort Letter; provided,
further, that if requested by the Agents, the Company shall cause a Comfort Letter to be furnished to the Agents within ten (10) Trading
Days of the date of occurrence of any material transaction or event, including the restatement of the Company’s financial statements.
The Comfort Letter from the Company’s independent accountants shall be in a form and substance satisfactory to the Lead Agent, (i) confirming
that they are an independent public accounting firm within the meaning of the Securities Act and the Public Company Accounting Oversight
Board (the “PCAOB”), (ii) stating, as of such date, the conclusions and findings of such firm with respect to
the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in
connection with registered public offerings (the first such letter, the “Initial Comfort Letter”) and (iii) updating
the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such
date and modified as necessary to relate to the Registration Statement and the Prospectus, as amended and supplemented to the date of
such letter.
(o) Reserve
Engineer Comfort Letter. (1) On the date of this Agreement and (2) within five (5) Trading Days of each Representation
Date contemplated by Section 7(l)(ii), the Company shall cause each of the reserve engineers providing a consent for the applicable
annual report on Form 10-K to furnish the Agents letters (the “Comfort Letters”), dated the date the Comfort Letter
is delivered, confirming, as of the date of its reserve report, that it was an independent reserve engineer for the Company and that,
as of the date of such letter, no information had come to its attention that could reasonably have been expected to cause it to withdraw
its reserve report.
(p) Market
Activities. The Company will not, directly or indirectly, (i) take any action designed to cause or result in, or that constitutes
or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of Common Stock or (ii) sell, bid for, or purchase Common Stock, or pay anyone any compensation for soliciting
purchases of the Placement Shares other than the Agents.
(q) Investment
Company Act. The Company will conduct its affairs in such a manner so as to reasonably ensure that it will not become, at any time
prior to the termination of this Agreement, an “investment company,” as such term is defined in the Investment Company Act.
(r) No Offer
to Sell. Other than an Issuer Free Writing Prospectus approved in advance by the Company and the Agents in their capacity as agent
hereunder, neither the Agents nor the Company (including its agents and representatives, other than the Agents in their capacity as such)
will make, use, prepare, authorize, approve or refer to any written communication (as defined in Rule 405 under the Securities Act),
required to be filed with the Commission, that constitutes an offer to sell or solicitation of an offer to buy Placement Shares hereunder.
(s) Sarbanes-Oxley
Act. The Company will maintain and keep accurate books and records reflecting its assets and maintain internal accounting controls
in a manner designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with GAAP and including those policies and procedures that (i) pertain to the maintenance
of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company, (ii) provide
reasonable assurance that transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial
statements in accordance with GAAP, (iii) that receipts and expenditures of the Company are being made only in accordance with management’s
and the Company’s directors’ authorization, and (iv) provide reasonable assurance regarding prevention or timely detection
of unauthorized acquisition, use or disposition of the Company’s assets that could have a material effect on its financial statements.
The Company will use its commercially reasonable efforts to maintain such controls and other procedures, including, without limitation,
those required by Sections 302 and 906 of the Sarbanes-Oxley Act, and the applicable regulations thereunder that are designed to ensure
that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed,
summarized and reported, within the time periods specified in the Commission’s rules and forms, including, without limitation,
controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits
under the Exchange Act is accumulated and communicated to the Company’s management, including its principal executive officer and
principal financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure
and to ensure that material information relating to the Company is made known to it by others within the Company, particularly during
the period in which such periodic reports are being prepared.
8. Payment
of Expenses. The Company will pay all expenses incident to the performance of its obligations under this Agreement, including (i) the
preparation, filing, including any fees required by the Commission, and printing of the Registration Statement (including financial statements
and exhibits) as originally filed and of each amendment and supplement thereto, in such number as the Lead Agent shall deem necessary,
(ii) the printing and delivery to the Agents of this Agreement and such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Placement Shares, (iii) the preparation, issuance and delivery of the certificates,
if any, for the Placement Shares to the Agents, including any stock or other transfer taxes and any capital duties, stamp duties or other
duties or taxes payable upon the sale, issuance or delivery of the Placement Shares to the Agents, (iv) the fees and disbursements
of the counsel, accountants and other advisors to the Company, (v) the reasonable and documented out-of-pocket expenses of the Agents,
including fees and disbursements of counsel to the Agents, up to $75,000 (which amount shall include all fees and disbursements of such
counsel described in clause (ix) below) and quarterly disbursements of counsel to the Agents up to $5,000 per calendar quarter, (vi) the
printing and delivery to the Agents of copies of any Permitted Issuer Free Writing Prospectus (defined below) and the Prospectus and any
amendments or supplements thereto in such number as the Lead Agent shall deem necessary, (vii) the preparation, printing and delivery
to the Agents of copies of the blue sky survey any supplements thereto, in such number as the Lead Agent shall deem necessary, (viii) the
fees and expenses of the transfer agent and registrar for the Common Stock, (ix) the fees and expenses incident to any review by
FINRA of the terms of the sale of the Placement Shares, including fees and expenses of counsel to the Agents, and (x) the fees and
expenses incurred in connection with the listing of the Placement Shares on the Exchange.
9. Conditions
to Obligations of the Agents. The obligations of the Agents hereunder with respect to a Placement will be subject to the continuing
accuracy and completeness of the representations and warranties made by the Company herein, to the due performance by the Company of its
obligations hereunder, to the completion by the Agents of a due diligence review satisfactory to it in its reasonable judgment, and to
the continuing satisfaction (or waiver by the Agents in their sole discretion) of the following additional conditions:
(a) Registration
Statement Effective. The Registration Statement shall have become effective and shall be available for the sale of all Placement Shares
contemplated to be issued by any Placement Notice.
(b) No Material
Notices. None of the following events shall have occurred and be continuing: (i) receipt by the Company of any request for additional
information from the Commission or any other federal or state governmental authority during the period of effectiveness of the Registration
Statement, the response to which would require any post-effective amendments or supplements to the Registration Statement or the Prospectus;
(ii) the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness
of the Registration Statement or the initiation of any proceedings for that purpose; (iii) receipt by the Company of any notification
with respect to the suspension of the qualification or exemption from qualification of any of the Placement Shares for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose; or (iv) the occurrence of any event that makes any material
statement made in the Registration Statement or the Prospectus or any material document incorporated or deemed to be incorporated therein
by reference untrue in any material respect or that requires the making of any changes in the Registration Statement, the Prospectus or
documents so that, in the case of the Registration Statement, it will not contain any materially untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in
the case of the Prospectus, it will not contain any materially untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made,
not misleading.
(c) No Misstatement
or Material Omission. The Lead Agent shall not have advised the Company that the Registration Statement or Prospectus, or any amendment
or supplement thereto, contains an untrue statement of fact that in such Lead Agent’s reasonable opinion is material, or omits to
state a fact that in such Lead Agent’s opinion is material and is required to be stated therein or is necessary to make the statements
therein not misleading.
(d) Material
Changes. Except as contemplated in the Prospectus, or disclosed in the Company’s reports filed with the Commission, there shall
not have been any material adverse change, on a consolidated basis, in the authorized capital stock of the Company or any Material Adverse
Effect, or any development that could reasonably be expected to cause a Material Adverse Effect, or a downgrading in or withdrawal of
the rating assigned to any of the Company’s securities (other than asset backed securities) by any rating organization or a public
announcement by any rating organization that it has under surveillance or review its rating of any of the Company’s securities (other
than asset backed securities), the effect of which, in the case of any such action by a rating organization described above, in the reasonable
judgment of the Lead Agent (without relieving the Company of any obligation or liability it may otherwise have), is so material as to
make it impracticable or inadvisable to proceed with the offering of the Placement Shares on the terms and in the manner contemplated
in the Prospectus.
(e) Legal
Opinion. The Agents shall have received the opinions of Company Counsel required to be delivered pursuant Section 7(m) on
or before the date on which such delivery of such opinion is required pursuant to Section 7(m).
(f) Comfort
Letter. The Agents shall have received the Comfort Letter required to be delivered pursuant Section 7(n) on or before the
date on which such delivery of such Comfort Letter is required pursuant to Section 7(n).
(g) Representation
Certificate. The Agents shall have received the certificate required to be delivered pursuant to Section 7(l) on or before
the date on which delivery of such certificate is required pursuant to Section 7(l).
(h) Secretary’s
Certificate. On the date of this Agreement, the Agents shall have received a certificate, signed on behalf of the Company by its corporate
Secretary, in form and substance satisfactory to the Lead Agent and counsel to the Agents.
(i) No Suspension.
Trading in the Common Stock shall not have been suspended on the Exchange, and the Common Stock shall not have been delisted from the
Exchange.
(j) Other
Materials. On each date on which the Company is required to deliver a certificate pursuant to Section 7(l), the Company shall
have furnished to the Agents such appropriate further information, certificates and documents as the Lead Agent may reasonably request.
All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof. The Company will furnish
the Agents with such conformed copies of such opinions, certificates, letters and other documents as the Lead Agent shall reasonably request.
(k) Securities
Act Filings Made. All filings with the Commission required by Rule 424 under the Securities Act to have been filed prior to the
issuance of any Placement Notice hereunder shall have been made within the applicable time period prescribed for such filing by Rule 424.
(l) Approval
for Listing. The Placement Shares shall either have been approved for listing quotation on the Exchange, subject only to notice of
issuance, or the Company shall have filed an application for listing quotation of the Placement Shares on the Exchange at, or prior to,
the issuance of any Placement Notice.
(m) No Termination
Event. There shall not have occurred any event that would permit the Agents to terminate this Agreement pursuant to Section 12(a).
10. Indemnification
and Contribution.
(a) Company
Indemnification. The Company agrees to indemnify and hold harmless each Agent, its partners, members, directors, officers, employees
and agents and each person, if any, who controls such Agent within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act as follows:
(i) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading,
or arising out of any untrue statement or alleged untrue statement of a material fact included in any related Issuer Free Writing Prospectus
or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided
that (subject to Section 10(d) below) any such settlement is effected with the written consent of the Agents, which consent
shall not unreasonably be delayed or withheld; and
(iii) against
any and all expense whatsoever, as incurred (including the fees and disbursements of counsel), reasonably incurred in investigating, preparing
or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent
that any such expense is not paid under (i) or (ii) above, provided, however, that this indemnity agreement shall
not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue
statement or omission made solely in reliance upon and in conformity with written information furnished to the Company by an Agent expressly
for use in the Registration Statement (or any amendment thereto), or in any related Issuer Free Writing Prospectus or the Prospectus (or
any amendment or supplement thereto).
(b) Agent
Indemnification. Each Agent agrees to indemnify and hold harmless the Company and its directors and each officer of the Company who
signed the Registration Statement, and each person, if any, who (i) controls the Company within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act or (ii) is controlled by or is under common control with the Company against
any and all loss, liability, claim, damage and expense described in the indemnity contained in Section 10(a), as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any
amendments thereto) or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with information relating
to such Agent and furnished to the Company in writing by such Agent expressly for use therein.
(c) Procedure.
Any party that proposes to assert the right to be indemnified under this Section 10 will, promptly after receipt of notice of commencement
of any action against such party in respect of which a claim is to be made against an indemnifying party or parties under this Section 10,
notify each such indemnifying party of the commencement of such action, enclosing a copy of all papers served, but the omission so to
notify such indemnifying party will not relieve the indemnifying party from (i) any liability that it might have to any indemnified
party otherwise than under this Section 10 and (ii) any liability that it may have to any indemnified party under the foregoing
provision of this Section 10 unless, and only to the extent that, such omission results in the forfeiture of substantive rights or
defenses by the indemnifying party. If any such action is brought against any indemnified party and it notifies the indemnifying party
of its commencement, the indemnifying party will be entitled to participate in and, to the extent that it elects by delivering written
notice to the indemnified party promptly after receiving notice of the commencement of the action from the indemnified party, jointly
with any other indemnifying party similarly notified, to assume the defense of the action, with counsel reasonably satisfactory to the
indemnified party, and after notice from the indemnifying party to the indemnified party of its election to assume the defense, the indemnifying
party will not be liable to the indemnified party for any legal or other expenses except as provided below and except for the reasonable
documented costs of investigation subsequently incurred by the indemnified party in connection with the defense. The indemnified party
will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at
the expense of such indemnified party unless (1) the employment of counsel by the indemnified party has been authorized in writing
by the indemnifying party, (2) the indemnified party has reasonably concluded (based on written advice of counsel) that there may
be legal defenses available to it or other indemnified parties that are different from or in addition to those available to the indemnifying
party, (3) a conflict or potential conflict exists (based on written advice of counsel to the indemnified party) between the indemnified
party and the indemnifying party (in which case the indemnifying party will not have the right to direct the defense of such action on
behalf of the indemnified party) or (4) the indemnifying party has not in fact employed counsel to assume the defense of such action
within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements
and other charges of counsel will be at the expense of the indemnifying party or parties. It is understood that the indemnifying party
or parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable
documented fees, disbursements and other charges of more than one separate firm admitted to practice in such jurisdiction at any one time
for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the indemnifying party
promptly after the indemnifying party receives a written invoice relating to fees, disbursements and other charges in reasonable detail.
An indemnifying party will not, in any event, be liable for any settlement of any action or claim effected without its written consent.
No indemnifying party shall, without the prior written consent of each indemnified party, settle or compromise or consent to the
entry of any judgment in any pending or threatened claim, action or proceeding relating to the matters contemplated by this Section 10
(whether or not any indemnified party is a party thereto), unless such settlement, compromise or consent (1) includes an unconditional
release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (2) does
not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) Contribution.
In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in the foregoing paragraphs
of this Section 10 is applicable in accordance with its terms but for any reason is held to be unavailable from the Company or an
Agent, the Company and such Agent will contribute to the total losses, claims, liabilities, expenses and damages (including any investigative,
legal and other expenses reasonably incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding
or any claim asserted, but after deducting any contribution received by the Company from persons other than the Agents, such as persons
who control the Company within the meaning of the Securities Act, officers of the Company who signed the Registration Statement and directors
of the Company, who also may be liable for contribution) to which the Company and the Agents may be subject in such proportion as shall
be appropriate to reflect the relative benefits received by the Company on the one hand and the Agents on the other hand. The relative
benefits received by the Company on the one hand and the Agents on the other hand shall be deemed to be in the same proportion as the
total net proceeds from the sale of the Placement Shares (before deducting expenses) received by the Company bear to the total compensation
received by the Agents (before deducting expenses) from the sale of Placement Shares on behalf of the Company. If, but only if, the allocation
provided by the foregoing sentence is not permitted by applicable law, the allocation of contribution shall be made in such proportion
as is appropriate to reflect not only the relative benefits referred to in the foregoing sentence but also the relative fault of the Company,
on the one hand, and the Agents, on the other hand, with respect to the statements or omission that resulted in such loss, claim, liability,
expense or damage, or action in respect thereof, as well as any other relevant equitable considerations with respect to such offering.
Such relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to information supplied by the Company or the Agents, the intent
of the parties and their relative knowledge, access to information and opportunity to correct or prevent such statement or omission. The
Company and the Agents agree that it would not be just and equitable if contributions pursuant to this Section 10(d) were to
be determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a result of the loss, claim, liability, expense, or damage,
or action in respect thereof, referred to above in this Section 10(d) shall be deemed to include, for the purpose of this Section 10(d),
any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action
or claim to the extent consistent with Section 10(c) hereof. Notwithstanding the foregoing provisions of this Section 10(d),
the Agents shall not be required to contribute any amount in excess of the commissions received by it under this Agreement and no person
found guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 10(d), any person
who controls a party to this Agreement within the meaning of the Securities Act, and any officers, directors, partners, employees or agents
of the Agents, will have the same rights to contribution as that party, and each director and officer of the Company who signed the Registration
Statement will have the same rights to contribution as the Company, subject in each case to the provisions hereof. Any party entitled
to contribution, promptly after receipt of notice of commencement of any action against such party in respect of which a claim for contribution
may be made under this Section 10(d), will notify any such party or parties from whom contribution may be sought, but the omission
to so notify will not relieve that party or parties from whom contribution may be sought from any other obligation it or they may have
under this Section 10(d) except to the extent that the failure to so notify such other party materially prejudiced the substantive
rights or defenses of the party from whom contribution is sought. Except for a settlement entered into pursuant to the last sentence of
Section 10(c) hereof, no party will be liable for contribution with respect to any action or claim settled without its written
consent if such consent is required pursuant to Section 10(c) hereof.
11. Additional
Covenants.
(a) Representations
and Covenants of the Agents. Each Agent represents and warrants that it is duly registered as a broker-dealer under FINRA, the Exchange
Act and the applicable statutes and regulations of each state in which the Placement Shares will be offered and sold, except such states
in which such Agent is exempt from registration or such registration is not otherwise required. Such Agent shall continue, for the term
of this Agreement, to be duly registered as a broker-dealer under FINRA, the Exchange Act and the applicable statutes and regulations
of each state in which the Placement Shares will be offered and sold, except such states in which such Agent is exempt from registration
or such registration is not otherwise required, during the term of this Agreement. Such Agent shall comply with all applicable law and
regulations in connection with the transactions contemplated by this Agreement, including the issuance and sale through the Agents of
the Placement Shares.
(b) Representations
and Agreements to Survive Delivery. The indemnity and contribution agreements contained in Section 10 of this Agreement and all
representations and warranties of the Company herein or in certificates delivered pursuant hereto shall survive, as of their respective
dates, regardless of (i) any investigation made by or on behalf of the Agents, any controlling persons, or the Company (or any of
their respective officers, directors or controlling persons), (ii) delivery and acceptance of the Placement Shares and payment therefor
or (iii) any termination of this Agreement.
12. Termination.
(a) Any
Agent may terminate this Agreement, with respect only to itself, by notice to the Company, as hereinafter specified at any time (1) if
there has been, since the time of execution of this Agreement or since the date as of which information is given in the Prospectus, any
Material Adverse Effect, or any development that is reasonably likely to have a Material Adverse Effect or, in the sole judgment of such
Agent, is material and adverse and makes it impractical or inadvisable to market the Placement Shares or to enforce contracts for the
sale of the Placement Shares, (2) if there has occurred any material adverse change in the financial markets in the United States
or the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of such Agent, impracticable or inadvisable to market the Placement Shares or to
enforce contracts for the sale of the Placement Shares, (3) if trading in the Common Stock has been suspended or limited by the Commission
or the Exchange, or if trading generally on the Exchange has been suspended or limited, or minimum prices for trading have been fixed
on the Exchange, (4) if any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market
shall have occurred and be continuing, (5) if a major disruption of securities settlements or clearance services in the United States
shall have occurred and be continuing, or (6) if a banking moratorium has been declared by either U.S. Federal or New York authorities.
Any such termination shall be without liability of any party to any other party except that the provisions of Section 8 (Payment
of Expenses), Section 10 (Indemnification), Section 11 (Additional Covenants), Section 17 (Governing Law and Time; Consent
to Jurisdiction) and Section 18 (Waiver of Jury Trial) hereof shall remain in full force and effect notwithstanding such termination.
If such Agent elects to terminate this Agreement as provided in this Section 12(a), such Agent shall provide the required notice
as specified in Section 13 (Notices).
(b) The
Company shall have the right, by giving five (5) days’ written notice as hereinafter specified, to terminate this Agreement
in its sole discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party to any
other party except that the provisions of Section 8, Section 10, Section 11, Section 17 and Section 18 hereof
shall remain in full force and effect notwithstanding such termination.
(c) Each
Agent shall have the right, by giving five (5) days’ written notice as hereinafter specified, to terminate this Agreement in
its sole discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party to any
other party except that the provisions of Section 8, Section 10, Section 11, Section 17 and Section 18 hereof
shall remain in full force and effect notwithstanding such termination.
(d) Unless
earlier terminated pursuant to this Section 12, this Agreement shall automatically terminate upon the issuance and sale of all of
the Placement Shares through the Agents on the terms and subject to the conditions set forth herein; provided that the provisions of Section 8,
Section 10, Section 11, Section 17 and Section 18 hereof shall remain in full force and effect notwithstanding such
termination.
(e) This
Agreement shall remain in full force and effect unless terminated pursuant to Sections 12(a), (b), (c), or (d) above or otherwise
by mutual agreement of the parties; provided, however, that any such termination by mutual agreement shall in all cases be deemed to provide
that Section 8, Section 10, Section 11, Section 17 and Section 18 shall remain in full force and effect. Upon
termination of this Agreement, the Company shall not have any liability to the Agents for any discount, commission or other compensation
with respect to any Placement Shares not otherwise sold by the Agents under this Agreement.
(f) Any
termination of this Agreement shall be effective on the date specified in such notice of termination; provided, however, that such termination
shall not be effective until the close of business on the date of receipt of such notice by the Agent or the Company, as the case may
be. If such termination shall occur prior to the Settlement Date for any sale of Placement Shares, such Placement Shares shall settle
in accordance with the provisions of this Agreement.
(g) Subject
to the additional limitations set forth in Section 8 of this Agreement, in the event of termination of this Agreement prior to the
sale of any Placement Shares, the Agents shall be entitled only to reimbursement of its out-of-pocket expenses actually incurred.
13. Notices.
All notices or other communications required or permitted to be given by any party to any other party pursuant to the terms of this Agreement
shall be in writing, unless otherwise specified, and if sent to the Agents, shall be delivered to:
Roth Capital Partners, LLC, as Lead
Agent
888 San Clemente
Newport Beach, CA 92660
Attention: Managing Director
E-mail: amontano@roth.com
Northland Securities, Inc.
150 South Fifth Street, Suite 3300
Minneapolis, MN 55402
Attention: Ted Warner
Telephone: 612-851-4906
Email: twarner@northlandcapitalmarkets.com
A.G.P./Alliance Global Partners
590 Madison Avenue
New York, NY 10022
Attention: Thomas J. Higgins
Telephone: 212-624-2117
Email: thiggins@allianceg.com
and
Porter Hedges LLP
1000 Main Street, 35th Floor
Houston, Texas 77002
Attention: Kevin Poli
E-mail: kpoli@porterhedges.com
and if to the Company, shall be delivered to:
Evolution Petroleum Corporation
1155 Dairy Ashford St., Suite 425
Houston, Texas 77079
Attn: Kelly Loyd
E-mail: kloyd@evolutionpetroleum.com
with a copy to:
Mayer Brown LLP
700 Louisiana Street, Suite 3400
Houston, Texas 77002
Attn: Bill Heller; David Bakst
E-mail: wheller@mayerbrown.com; dbakst@mayerbrown.com
Each party to this Agreement
may change such address for notices by sending to the parties to this Agreement written notice of a new address for such purpose. Each
such notice or other communication shall be deemed given (i) when delivered personally or by verifiable facsimile transmission (with
an original to follow) on or before 4:30 p.m., New York City time, on a Business Day or, if such day is not a Business Day, on the
next succeeding Business Day, (ii) on the next Business Day after timely delivery to a nationally-recognized overnight courier and
(iii) on the Business Day actually received if deposited in the U.S. mail (certified or registered mail, return receipt requested,
postage prepaid).
An electronic communication
(“Electronic Notice”) shall be deemed written notice for purposes of this Section 13 if sent to the electronic
mail address specified by the receiving party under separate cover. Electronic Notice shall be deemed received at the time the party sending
Electronic Notice receives verification of receipt by the receiving party. Any party receiving Electronic Notice may request and shall
be entitled to receive the notice on paper, in a nonelectronic form (“Nonelectronic Notice”) which shall be sent to
the requesting party within ten (10) days of receipt of the written request for Nonelectronic Notice.
14. Successors
and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and the Agents and their respective successors
and the affiliates, controlling persons, officers and directors referred to in Section 10 hereof. References to any of the parties
contained in this Agreement shall be deemed to include the successors and permitted assigns of such party. Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and permitted assigns
any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party; provided,
however, that any Agent may assign its rights and obligations hereunder to an affiliate thereof without obtaining the Company’s
consent.
15. Adjustments
for Stock Splits. The parties acknowledge and agree that all share-related numbers contained in this Agreement shall be adjusted to
take into account any stock split, stock dividend or similar event effected with respect to the Placement Shares.
16. Entire
Agreement; Amendment; Severability. This Agreement (including all schedules and exhibits attached hereto and Placement Notices issued
pursuant hereto) constitutes the entire agreement and supersedes all other prior and contemporaneous agreements and undertakings, both
written and oral, among the parties hereto with regard to the subject matter hereof. Neither this Agreement nor any term hereof may be
amended except pursuant to a written instrument executed by the Company and the Agents. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable as written by a court of competent
jurisdiction, then such provision shall be given full force and effect to the fullest possible extent that it is valid, legal and enforceable,
and the remainder of the terms and provisions herein shall be construed as if such invalid, illegal or unenforceable term or provision
was not contained herein, but only to the extent that giving effect to such provision and the remainder of the terms and provisions hereof
shall be in accordance with the intent of the parties as reflected in this Agreement.
17. GOVERNING
LAW AND TIME; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME. EACH PARTY HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
18. CONSENT
TO JURISDICTION. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN
THE CITY OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH ANY TRANSACTION CONTEMPLATED
HEREBY, AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY
SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR THAT THE VENUE
OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS
BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF (CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED)
TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT
SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY
MANNER PERMITTED BY LAW.
19. Use
of Information. The Agents may not use any information gained in connection with this Agreement and the transactions contemplated
by this Agreement, including due diligence, to advise any party with respect to transactions not expressly approved by the Company.
20. Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Delivery of an executed Agreement by one party to the other may be made by facsimile transmission
or email delivery of an executed Agreement as an attachment in .pdf format.
21. Effect
of Headings. The section and Exhibit headings herein are for convenience only and shall not affect the construction hereof.
22. Permitted
Free Writing Prospectuses.
The Company represents, warrants and agrees that,
unless it obtains the prior consent of each Agent, and each Agent represents, warrants and agrees that, unless it obtains the prior consent
of the Company, it has not made and will not make any offer relating to the Placement Shares that would constitute an Issuer Free Writing
Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed
with the Commission. Any such free writing prospectus consented to by the Agents or by the Company, as the case may be, is hereinafter
referred to as a “Permitted Free Writing Prospectus.” The Company represents and warrants that it has treated and agrees that
it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433,
and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including
timely filing with the Commission where required, legending and record keeping.
23. Absence
of Fiduciary Relationship.
The Company acknowledges and
agrees that:
(a) Each
Agent is acting solely as agent in connection with the public offering of the Placement Shares and in connection with each transaction
contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company
or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand,
and the Agents, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective
of whether or not any Agent has advised or is advising the Company on other matters, and no Agent has an obligation to the Company with
respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) it
is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated
by this Agreement;
(c) no
Agent has provided any legal, accounting, regulatory or tax advice with respect to the transactions contemplated by this Agreement and
it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it
is aware that the Agents and their affiliates are engaged in a broad range of transactions which may involve interests that differ from
those of the Company and the Agents have no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary,
advisory or agency relationship or otherwise; and
(e) it
waives, to the fullest extent permitted by law, any claims it may have against any Agent for breach of fiduciary duty or alleged breach
of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no Agent shall have any liability
(whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any person asserting
a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of the
Agents’ obligations under this Agreement and to keep information provided by the Company to the Agents and the counsel to the Agents
confidential to the extent not otherwise publicly-available.
24. Definitions.
As used in this Agreement,
the following terms have the respective meanings set forth below:
“Applicable Time”
means (i) each Representation Date, (ii) the time of each sale of any Placement Shares pursuant to this Agreement, and (iii) each
Settlement Date.
“Business Day”
shall mean any day on which the Exchange and commercial banks in the City of New York are open for business.
“Issuer Free Writing
Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433, relating to the Placement Shares
that (1) is required to be filed with the Commission by the Company, (2) is a “road show” that is a “written
communication” within the meaning of Rule 433(d)(8)(i) whether or not required to be filed with the Commission, or (3) is
exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description of the Placement Shares or of the offering
that does not reflect the final terms, in each case in the form filed or required to be filed with the Commission or, if not required
to be filed, in the form retained in the Company’s records pursuant to Rule 433(g) under the Securities Act.
“Rule 172,”
“Rule 405,” “Rule 415,” “Rule 424,” “Rule 424(b),”
“Rule 430B,” and “Rule 433” refer to such rules under the Securities Act.
“Trading Day”
means any day on which shares of Common Stock are purchased and sold on the Exchange.
All references in this Agreement
to financial statements and schedules and other information that is “contained,” “included” or “stated”
in the Registration Statement or the Prospectus (and all other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information that is incorporated by reference in the Registration Statement or the Prospectus,
as the case may be.
All references in this Agreement
to the Registration Statement, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy
filed with the Commission pursuant to EDGAR; all references in this Agreement to any Issuer Free Writing Prospectus (other than any Issuer
Free Writing Prospectuses that, pursuant to Rule 433, are not required to be filed with the Commission) shall be deemed to include
the copy thereof filed with the Commission pursuant to EDGAR; and all references in this Agreement to “supplements” to the
Prospectus shall include, without limitation, any supplements, “wrappers” or similar materials prepared in connection with
any offering, sale or private placement of any Placement Shares by the Agents outside of the United States.
If the foregoing correctly
sets forth the understanding between the Company and the Agents, please so indicate in the space provided below for that purpose, whereupon
this Agreement shall constitute a binding agreement between the Company and the Agents.
Very truly yours,
| |
EVOLUTION PETROLEUM CORPORATION |
| |
|
| |
By: |
/s/
Ryan Stash |
| |
Name: |
Ryan Stash |
| |
Title: |
Senior Vice President, Chief Financial Officer
and Treasurer |
| |
|
| |
ACCEPTED as of the date first-above
written: |
| |
|
| |
ROTH CAPITAL PARTNERS, LLC |
| |
|
| |
By: |
/s/ Alexander
Montano |
| |
Name: |
Alexander Montano |
| |
Title: |
Managing Director, Head of Energy Investment Banking |
| |
|
| |
NORTHLAND SECURITIES, INC. |
| |
|
| |
By: |
/s/ Ted Warner |
| |
Name: |
Ted Warner |
| |
Title: |
Head of Energy & Power Investment Banking |
| |
|
| |
A.G.P./Alliance
Global Partners |
| |
|
| |
By: |
/s/ Thomas J.
Higgins |
| |
Name: |
Thomas J. Higgins |
| |
Title: |
Managing Director |
[Signature Page to Sales Agreement]
SCHEDULE 1
FORM OF PLACEMENT NOTICE
From: EVOLUTION
PETROLEUM CORPORATION
To: ROTH
CAPITAL PARTNERS, LLC
| Attention: | energy@roth.com |
| | | rothecm@roth.com |
| | | atmdesk@roth.com |
NORTHLAND SECURITIES, INC.
Attention: twarner@northlandcapitalmarkets.com
A.G.P./ALLIANCE GLOBAL PARTNERS
Attention: atm@allianceg.com
Subject: Placement Notice
Date: _____________________
Gentlemen:
Pursuant to the terms and
subject to the conditions contained in the Sales Agreement between, Evolution Petroleum Corporation (the “Company”), and Roth
Capital Partners, LLC (the “Lead Agent”), Northland Securities, Inc. and A.G.P./Alliance Global Partners, dated October 21,
2024, the Company hereby requests that the Lead Agent sell up to ____________ of the Company’s Common Stock, $0.001 par value per
share, at a minimum market price of $_______ per share, during the time period beginning [month, day, time] and ending [month, day, time].
[the Company may include such other sales parameters as it deems appropriate]
SCHEDULE 2
Compensation
The Company shall pay to the Lead Agent in cash, upon each sale of
Placement Shares pursuant to this Agreement, an amount equal to 3% of the gross proceeds from each sale of Placement Shares.
SCHEDULE 3
Notice Parties
The Company
Kelly Loyd kloyd@evolutionpetroleum.com
The Agents
Roth Capital Partners, LLC
Lou Ellis LEllis@roth.com
Nazan Akdeniz NAkdeniz@roth.com
With a copy to RothECM@roth.com
Northland Securities, Inc.
twarner@northlandcapitalmarkets.com
A.G.P./Alliance Global Partners
atm@allianceg.com
EXHIBIT 7(m)
Form of Representation Date Certificate
____________________, 20__
This Representation Date Certificate
(this “Certificate”) is executed and delivered in connection with Section 7(l) of the Sales Agreement (the “Agreement”),
dated October 21, 2024, and entered into between Evolution Petroleum Corporation (the “Company”), Roth Capital Partners,
LLC, Northland Securities, Inc. and A.G.P./Alliance Global Partners. All capitalized terms used but not defined herein shall have
the meanings given to such terms in the Agreement.
The undersigned, a duly appointed
and authorized officer of the Company, having made all necessary inquiries to establish the accuracy of the statements below and having
been authorized by the Company to execute this certificate, hereby certifies as follows:
| 1. | As of the date of this Certificate, (i) the Registration Statement does not contain any untrue statement
of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein
not misleading and (ii) neither the Registration Statement nor the Prospectus contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading and (iii) no event has occurred as a result of which it is necessary to amend or supplement
the Prospectus in order to make the statements therein not untrue or misleading. |
| 2. | Each of the representations and warranties of the Company contained in the Agreement were, when originally
made, and are, as of the date of this Certificate, true and correct in all material respects. |
| 3. | Each of the covenants required to be performed by the Company in the Agreement on or prior to the date
of the Agreement, this Representation Date, and each such other date as set forth in the Agreement, has been duly, timely and fully performed
in all material respects and each condition required to be complied with by the Company on or prior to the date of the Agreement, this
Representation Date, and each such other date as set forth in the Agreement or in the Waivers has been duly, timely and fully complied
with in all material respects. |
| 4. | Subsequent to the date of the most recent financial statements in the Prospectus, and except as described
in the Prospectus, including Incorporated Documents, there has been no Material Adverse Effect. |
| 5. | No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been
issued, and no proceedings for that purpose have been instituted or are pending or threatened by any securities or other governmental
authority (including, without limitation, the Commission). |
The undersigned has executed
this Representation Date Certificate as of the date first written above.
| |
EVOLUTION PETROLEUM CORPORATION |
| |
|
| |
By: |
|
| |
Name: |
| |
Title: |
Exhibit 5.1
 |
7800 Rancharrah Parkway
Reno, NV 89511
PH (775) 788-2200 | FX (775) 786-1177
fennemorecraig.com |
October 21, 2024
Evolution Petroleum Corporation
1155 Dairy Ashford, Suite 425
Houston, Texas 77079
| Re: | Evolution Petroleum Corporation |
Ladies and Gentlemen:
We are acting as special Nevada
counsel to Evolution Petroleum Corporation, a Nevada corporation (the “Company”), in connection with a prospectus supplement
(the “Prospectus”) to a registration statement on Form S-3, Registration No. 333-265430 (the “Registration
Statement”), filed with the Securities and Exchange Commission (the “Commission”) relating to the offering under the
Securities Act of 1933, as amended (the “Securities Act”), of up to $30,000,000 in shares (the “Offered Shares”)
of the Company’s common stock, $0.001 par value per share (“Common Stock”), pursuant to the terms of a Sales Agreement,
as defined below. Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Sales Agreement.
For the purpose of rendering
this opinion, we have examined originals, or copies certified or otherwise identified to our satisfaction as being true copies, of such
records, documents, instruments and certificates as, in our judgment, are necessary or appropriate to enable us to render the opinions
set forth below, including, but not limited to, the following:
A. The
Sales Agreement (the “Sales Agreement”) dated as of October 21, 2024 between the Company and Roth Capital Partners, LLC,
as Lead Agent (“Lead Agent”), Northland Securities, Inc. (“Northland”), and AG.P./Alliance Global Partners
(“AGP”, and together with Lead Agent and Northland, the “Agents”);
B. The
Registration Statement and the Prospectus;
C. The
Articles of Incorporation and Amended and Restated Bylaws of the Company, each as amended to date (collectively, the “Governing
Documents”); and
October 21, 2024
Page 2
D. Such
corporate records and proceedings, minutes, consents, actions and resolutions of the board of directors as we have deemed necessary as
a basis for the opinions expressed below.
We have made such legal and
factual examinations and inquiries as we have deemed necessary or appropriate for the purposes of this opinion. We have also obtained
from officers and agents of the Company and from public officials, and have relied upon, such certificates, representations and assurances
as we have deemed necessary and appropriate for the purpose of rendering this opinion.
Without limiting the generality
of the foregoing, in our examination, we have, with your permission, assumed without independent verification, that (i) all documents
submitted to us as originals are authentic, the signatures on all documents that we examined are genuine, and all documents submitted
to us as certified, conformed, photostatic, electronic or facsimile copies conform to the original document; and (ii) all corporate
records made available to us by the Company and all public records we have reviewed are accurate and complete. We note that the Company
has reserved, and assume it will continue to maintain reserved, a sufficient number of shares of its duly authorized, but unissued, shares
of the Common Stock as is necessary to provide for the issuance of the Offered Shares.
Nothing herein shall be deemed
an opinion as to the laws of any jurisdiction other than the State of Nevada. We express no opinion concerning any securities law or rule.
Based on the foregoing, and
in reliance thereon, we are of the opinion that:
1. The Offered Shares have
been duly authorized by the Company for issuance and sale in accordance with the terms of the Sales Agreement.
2. When issued and delivered
by the Company in accordance with the Sales Agreement against payment of the consideration set forth in the Sales Agreement, the Offered
Shares will be validly issued, fully paid and non-assessable.
This opinion is issued in
the State of Nevada. By issuing this opinion, Fennemore Craig, P.C. (i) shall not be deemed to be transacting business in any other
state or jurisdiction other than the State of Nevada and (ii) does not consent to the jurisdiction of any state other than the State
of Nevada. Any claim or cause of action arising out of the opinions expressed herein must be brought in the State of Nevada.
October 21, 2024
Page 3
We consent to your filing
this opinion as an exhibit to the Form 8-K and to the reference to our firm contained under the heading “Legal Matters”
in the Prospectus. We further consent to the incorporation by reference of this opinion and consent in any prospectus supplement to the
Registration Statement filed pursuant to Rule 424(b) under the Securities Act with respect to the Offered Shares. In giving
these consents, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the
Securities Act, the rules and regulations of the Commission promulgated thereunder, or Item 509 of Regulation S-K. This opinion letter
is rendered as of the date first written above and we disclaim any obligation to advise you of facts, circumstances, events or developments
which hereafter may be brought to our attention and which may alter, affect or modify the opinion expressed herein. Our opinion is expressly
limited to the matters set forth above and we render no opinion, whether by implication or otherwise, as to any other matters relating
to the Company or the Offered Shares.
| |
Very truly yours, |
| |
|
| |
/s/ Fennemore Craig, P.C. |
| |
|
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Fennemore Craig, P.C. |
CDOL/CETE
v3.24.3
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