Form 8-K
8-K — Quantum Cyber N.V.
Accession: 0001213900-26-108579
Filed: 2026-10-09
Period: 2026-10-09
CIK: 0001874252
SIC: 2834 (PHARMACEUTICAL PREPARATIONS)
Item: Entry into a Material Definitive Agreement
Item: Financial Statements and Exhibits
Documents
8-K — ea0308212-8k_quantum.htm (Primary)
EX-1.1 — SALES AGREEMENT, DATED AS OF OCTOBER 9, 2026, BY AND BETWEEN QUANTUM CYBER N.V. AND TITAN PARTNERS SECURITIES LLC (ea030821202ex1-1.htm)
EX-5.1 — OPINION OF CMS DERKS STAR BUSMANN N.V (ea030821202ex5-1.htm)
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8-K — CURRENT REPORT
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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 9, 2026
Quantum Cyber N.V.
(Exact Name of Registrant as Specified in its
Charter)
The Netherlands
001-41010
N/A
(State or Other Jurisdiction
of Incorporation)
(Commission File Number)
(I.R.S. Employer
Identification No.)
200 Connecticut Ave, Suite 400, Norwalk CT 06854
(Address of Principal Executive Offices) (Zip
Code)
+1 (561) 562-4111
(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):
☐
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b)
of the Act:
Title of Each Class
Trading Symbol(s)
Name of Each Exchange On Which Registered
Ordinary Shares, nominal value €0.01 per share
QUCY
Nasdaq Capital Market
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2
of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company ☒
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 Entry into a Material Definitive Agreement.
On October 9, 2026, in connection with the launch of an “at the
market” offering program, Quantum Cyber N.V. (the “Company”) entered into a sales agreement (the “Sales Agreement”)
with Titan Partners Securities LLC, as sales agent (the “Agent”). In accordance with the terms of the Sales Agreement and
the Prospectus Supplement (defined below), the Company may sell, from time to time, an aggregate of up to $100,000,000 of its ordinary
shares, nominal value €0.01 per share (the “Ordinary Shares” and such shares sold pursuant to the Sales Agreement, the
“Shares”).
The Shares may be issued and sold from time to time through the
Agent pursuant to the Company’s shelf Registration Statement on Form S-3 (File No. 333-296480), initially filed with the
Securities and Exchange Commission (the “SEC”) on June 4, 2026 and declared effective by the SEC on June
15, 2026, including the base prospectus dated June 15, 2026 contained therein. The Company has filed a prospectus supplement, dated October 9, 2026, pursuant to
Rule 424(b) under the Securities Act of 1933, as amended (the “Securities Act”), relating to the offer and sale of the
Shares pursuant to the Sales Agreement (the “Prospectus Supplement”). The Company intends to use the net proceeds from
the sale of the Shares, if any, (i) to fund capital expenditures and software development related to its motor, propeller and
quantum antenna lines, (ii) to fund software development related to its operating system, (iii) to fund the expansion of its
production capacity, and product offerings, including through potential acquisitions of, investments in, or strategic partnerships
or joint ventures with, complementary businesses, technologies or assets, and (iv) for working capital and general corporate
purposes.
The Company may, from time to time and subject to the terms of the
Sales Agreement, sell the Shares thereunder, but is not obligated to sell any such Shares. Subject to the terms and conditions of the
Sales Agreement, the Agent will use its commercially reasonable efforts to sell, on the Company’s behalf, the Shares offered by
the Company under the Sales Agreement. The Agent may sell such
Shares by any methods deemed to be an “at the market” offering as defined in Rule 415 promulgated under the Securities Act,
including without limitation sales made directly on The Nasdaq Capital Market or any other existing trading market for the Ordinary Shares
or to or through a market maker. The Agent may also sell Shares in negotiated
transactions. The offering of Shares pursuant to the Sales Agreement will terminate upon the earlier of (i) the sale of all
Shares subject to the Sales Agreement and (ii) the termination of the Sales Agreement as permitted therein.
The Company has agreed to pay the Agent a commission equal to 3.0%
of the gross sales price of the Shares sold pursuant to the Sales Agreement. In addition, the Company has agreed to reimburse the Agent
for certain specified expenses. The Sales Agreement contains customary representations, warranties and agreements of the Company and the
Agent, indemnification rights and obligations of the parties and termination provisions.
The foregoing summary of the Sales Agreement does not purport to be
complete and is qualified in its entirety by reference to the full text of the Sales Agreement, a copy of which is filed as Exhibit 1.1
hereto and incorporated herein by reference. The provisions of the Sales Agreement, including the representations and warranties contained
therein, are not for the benefit of any party other than the parties to the Sales Agreement and are not intended as a document for investors
and the public to obtain factual information about the Company’s current state of affairs. Rather, investors and the public should
look to other disclosures contained in the Company’s filings with the SEC.
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 jurisdiction
in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such
jurisdiction. The legal opinion of CMS Derks Star Busmann N.V. relating to the Shares being offered pursuant to the Sales Agreement
is filed as Exhibit 5.1 to this Current Report on Form 8-K.
1
Forward-Looking Statements
Certain information in this Current Report on Form 8-K may be considered
“forward-looking statements” within the meaning of Section 27A of the Securities Act and Section 21E of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), including, without limitation, statements regarding the Company’s sale
of Shares under the Sales Agreement and the Company’s intended use of proceeds. These forward-looking statements are based on management’s
current expectations, assumptions, hopes, beliefs, intentions and strategies regarding future events and are based on currently available
information as to the outcome and timing of future events. Because forward-looking statements are inherently subject to risks and uncertainties,
some of which cannot be predicted or quantified, you should not rely upon forward-looking statements as predictions of future events.
The events and circumstances reflected in the forward-looking statements may not be achieved or occur and actual results could differ
materially from those projected in the forward-looking statements, including due to changes in economic and financial conditions, such
as volatility in interest and exchange rates and in the capital or credit markets, and due to other factors discussed in the section titled
“Risk Factors” in the Company’s Annual Report on Form 10-K filed with the SEC on March 31, 2026, Quarterly Report on
Form 10-Q filed with the SEC on August 14, 2026 and Current Report on Form 8-K filed with the SEC on May 26, 2026 and other documents
filed with the SEC from time to time. Except as otherwise required by applicable law, the Company disclaims any duty to update any forward-looking
statements.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
Exhibit No.
Description
1.1
Sales Agreement, dated as of October 9, 2026, by and between Quantum Cyber N.V. and Titan Partners Securities LLC.
5.1
Opinion of CMS Derks Star Busmann N.V.
23.1
Consent of CMS Derks Star Busmann N.V. (included in Exhibit 5.1 hereto).
104
Cover Page Interactive Data File, formatted within the inline XBRL document).
2
SIGNATURES
Pursuant to the requirements
of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
Quantum Cyber N.V.
By:
/s/ David Lazar
Name:
David Lazar
Title:
Chief Executive Officer
Dated: October 9, 2026
3
EX-1.1 — SALES AGREEMENT, DATED AS OF OCTOBER 9, 2026, BY AND BETWEEN QUANTUM CYBER N.V. AND TITAN PARTNERS SECURITIES LLC
EX-1.1
Filename: ea030821202ex1-1.htm · Sequence: 2
Exhibit 1.1
QUANTUM CYBER N.V.
Ordinary Shares
(€0.01 par value per share)
SALES AGREEMENT
October 9, 2026
Titan Partners Securities LLC
4 World Trade Center, 49th Floor
New York, NY 10007
Ladies and Gentlemen:
Quantum Cyber N.V., a company
organized under the laws of the Netherlands (the “Company”), proposes, subject to the terms and conditions stated herein,
to issue and sell from time to time through Titan Partners Securities LLC (the “Agent”), as sales agent, ordinary shares
(the “Shares”) of the Company, par value €0.01 per share (the “Ordinary Shares”), on
the terms and subject to the conditions set forth in Section 2 of this agreement (this “Agreement”).
The Company has prepared and filed,
or will prepare and file, with the Securities and Exchange Commission (the “Commission”) a registration statement on
Form S-3, and such amendments to such registration statement as may have been or may be required, under the Securities Act of 1933, as
amended (the “1933 Act”) and the rules and regulations of the Commission under the 1933 Act (the “1933 Act
Regulations”). Such registration statement (including, as provided in Section 3(y), any new registration statement filed by
the Company relating to the Shares), at any given time, including the amendments, the exhibits and schedules thereto at such time, the
documents incorporated or deemed to be incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act at such time
and the documents and information otherwise deemed to be a part thereof or included therein by Rule 430B under the 1933 Act (the “Rule
430B Information”) or otherwise pursuant to the 1933 Act Regulations at such time, is herein called the “Registration
Statement.” Any registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein called the “Rule
462(b) Registration Statement” and, after such filing, the term “Registration Statement” shall include the
Rule 462(b) Registration Statement. The Registration Statement, as amended at the time it became or becomes effective, is herein called
the “Initial Registration Statement”. The prospectus in the form in which it appeared in the Initial Registration Statement
is herein called the “Base Prospectus.” Promptly after the later of the execution and delivery of this Agreement and
the effectiveness of the Initial Registration Statement, the Company will prepare and file with the Commission a prospectus supplement
to the Base Prospectus relating to the Shares and the offering thereof (the “Prospectus Supplement”) in accordance
with the provisions of Rule 430B (“Rule 430B”) and Rule 424(b) (“Rule 424(b)”) of the 1933 Act Regulations.
Such supplemental form of prospectus (including the Base Prospectus as so supplemented), in the form filed with the Commission pursuant
to Rule 424(b) under the 1933 Act is herein called the “Prospectus.” Any reference herein to the Base Prospectus, the
Prospectus Supplement or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 under the 1933 Act as of the date of such prospectus.
For the purposes of this Agreement:
“Applicable Time”
means, with respect to any Shares, the time of sale of such Shares pursuant to this Agreement; the Prospectus and the applicable Issuer
Free Writing Prospectus(es) issued at or prior to such Applicable Time, taken together (collectively, and, with respect to any Shares,
together with the public offering price of such Shares, the “General Disclosure Package”).
“Issuer Free Writing
Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 of the 1933 Act Regulations (“Rule
433”), including without limitation any “free writing prospectus” (as defined in Rule 405 of the 1933 Act Regulations
(“Rule 405”)) relating to the Shares that is (i) required to be filed with the Commission by the Company, (ii) a “road
show that is a written communication” within the meaning of Rule 433(d)(8)(i), whether or not required to be filed with the Commission,
or (iii) exempt from filing with the Commission pursuant to Rule 433(d)(5)(i) because it contains a description of the Shares or of the
offering that does not reflect the final terms, in each case in the form filed or required to be filed with the Commission or, if not
required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g).
“Issuer General Use Free
Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general distribution to prospective investors
(other than a “bona fide electronic road show,” as defined in Rule 433).
“Issuer Limited Use Free
Writing Prospectus” means any Issuer Free Writing Prospectus that is not an Issuer General Use Free Writing Prospectus.
“Offering”
means the offering and sale of the Shares.
“SEC Reports”
means all reports, schedules, forms, statements and other documents required to be filed by the Company under the 1933 Act and the 1934
Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof (or such shorter period as the
Company was required by law or regulation to file such material).
“Statutory Prospectus”
means the Base Prospectus, as amended and supplemented immediately prior to the Applicable Time, including any document incorporated by
reference therein and any prospectus supplement deemed to be a part thereof, including the Prospectus Supplement. For purposes of this
definition, Rule 430B Information contained in a form of prospectus that is deemed retroactively to be a part of the Registration Statement
shall be considered to be included in the Statutory Prospectus as of the actual time that form of prospectus is filed with the Commission
pursuant to Rule 424(b) under the 1933 Act.
All references in this Agreement
to financial statements and schedules and other information which is “described”, “contained,” “included”
or “stated” (or other references of like import) in the Registration Statement, the Base Prospectus, or the Prospectus shall
be deemed to mean and include all such financial statements and schedules and other information incorporated or deemed incorporated by
reference in the Registration Statement, the Base Prospectus, or the Prospectus, as the case may be, prior to the execution and delivery
of this Agreement; and all references in this Agreement to amendments or supplements to the Registration Statement, the Base Prospectus,
or the Prospectus shall be deemed to mean and include the filing of any document under the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder (collectively, the “1934 Act”), incorporated or deemed to be incorporated
by reference in the Registration Statement, the Base Prospectus, or the Prospectus, as the case may be, at or after the execution and
delivery of this Agreement. The Company’s obligations under this Agreement to furnish, provide, deliver or make available (and all
other references of like import) copies of any report or statement shall be deemed satisfied if the same is filed with the Commission
through its Electronic Data Gathering, Analysis and Retrieval system (except that, upon the Agent’s request, the Company shall provide
a printed copy of the Registration Statement and of any amendment or supplement thereto with conformed signatures in PDF format).
2
Section 1. Representations
and Warranties. The Company represents and warrants to the Agent that as of the date of this Agreement, any applicable Registration
Statement Amendment Date (as defined in Section 3 below), each Company Periodic Report Date (as defined in Section 3 below), each Applicable
Time and each Settlement Date (as defined in Section 2 below), unless such representation or warranty specifies a different time:
(i) Registration
Statement and Prospectuses. The Company meets the requirements for use of Form S-3 under the 1933 Act subject to General Instruction
I.B.1 of Form S-3 or, if applicable, General Instruction I.B.6 of Form S-3 with respect to the aggregate market value of securities sold
pursuant to this offering and during the 12 month period immediately prior to such time that this representation is made or deemed to
be made. The Registration Statement has been, or prior to the delivery of the first Sales Notice will have been, declared effective under
the 1933 Act, and each amendment thereto has become or will become effective under the 1933 Act. No stop order suspending the effectiveness
of the Registration Statement or any post-effective amendment thereto has been issued by the Commission under the 1933 Act, no order preventing
or suspending the use of any preliminary prospectus or the Prospectus has been issued by the Commission and no proceedings for any of
those purposes have been instituted by the Commission or are pending or, to the Company’s knowledge, contemplated by the Commission.
The Company has complied with each request (if any) from the Commission for additional information.
Each of the Registration Statement
and any post-effective amendment thereto, at the time of its effectiveness and at each deemed effective date with respect to the Agent
pursuant to Rule 430B(f)(2) under the 1933 Act Regulations, complied and will comply in all material respects with the requirements of
the 1933 Act and the 1933 Act Regulations. The Prospectus and any amendment or supplement thereto, at the time each was filed with the
Commission, complied and will comply in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
The documents incorporated or deemed
to be incorporated by reference in the Registration Statement and the Prospectus, when they became effective or at the time they were
or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the 1934 Act and
the rules and regulations of the Commission under the 1934 Act (the “1934 Act Regulations”); and any further documents
so filed and incorporated by reference in the Registration Statement and the Prospectus, when such documents are filed with the Commission,
will comply in all material respects to the requirements of the 1934 Act Regulations.
(ii)Accurate
Disclosure. Neither the Registration Statement nor any amendment thereto, at its effective time, at each Company Periodic Report
Date, at each Applicable Time and at each Settlement Date, contained, contains or will contain an untrue statement of a material fact
or omitted, omits or will omit to state a material fact required to be stated therein or necessary to make the statements therein not
misleading. As of each Applicable Time and each Settlement Date, none of (A) the General Disclosure Package and (B) any individual Issuer
Limited Use Free Writing Prospectus, when considered together with the General Disclosure Package, included, includes or will include
an untrue statement of a material fact or omitted, omits or will omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading. Neither the Prospectus nor any amendment or supplement
thereto (including any prospectus wrapper), as of its issue date, at the time of any filing with the Commission pursuant to Rule 424(b),
at each Company Periodic Report Date, at each Applicable Time and at each Settlement Date, included, includes or will include an untrue
statement of a material fact or omitted, omits or will omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading. The documents incorporated or deemed to be incorporated
by reference in the Registration Statement, the General Disclosure Package and the Prospectus, at the time the Registration Statement
became effective or when such documents incorporated by reference were filed with the Commission, as the case may be, when read together
with the other information in the Registration Statement, the General Disclosure Package or the Prospectus, as the case may be, did not
and will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading.
3
The representations and warranties
in this subsection shall not apply to statements in or omissions from the Registration Statement (or any amendment thereto), the General
Disclosure Package or the Prospectus (or any amendment or supplement thereto) made in reliance upon and in conformity with written information
furnished to the Company by the Agent expressly for use therein.
(iii) Issuer
Free Writing Prospectuses. No Issuer Free Writing Prospectus conflicts or will conflict with the information contained in the
Registration Statement or the Prospectus, including any document incorporated by reference therein, and any preliminary or other prospectus
deemed to be a part thereof that has not been superseded or modified. Any Issuer Free Writing Prospectus that the Company is required
to file pursuant to Rule 433(d) under the 1933 Act has been, or will be, filed with the Commission in accordance with the requirements
of the 1933 Act and the 1933 Act Regulations. Each Issuer Free Writing Prospectus that the Company has filed, or is required to file,
pursuant to Rule 433(d) under the 1933 Act or that was prepared by or on behalf of or used or referred to by the Company complies or will
comply in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. The Company has not prepared, used
or referred to, and will not, without the prior consent of the Agent, prepare, use or refer to, any Issuer Free Writing Prospectus.
(iv)Stock Exchange Listing.
The Ordinary Shares have been approved for listing on the Nasdaq Capital Market (the “Exchange”), and the Company has
taken no action intended to result in, or likely to have the effect of, delisting the Ordinary Shares from the Exchange, nor has the Company
received any written notification that the Exchange is contemplating terminating such listing except as described in the Registration
Statement, the General Disclosure Package and the Prospectus. The Company will promptly submit a Listing of Additional Shares notification
form with the Exchange with respect to the Offering of the Shares following the execution of this Agreement.
(v) No Other Distribution of
Offering Materials. The Company has not, directly or indirectly, distributed and will not distribute any offering material in connection
with the Offering other than the General Disclosure Package, the Prospectus and other materials, if any, permitted under the 1933 Act
and consistent with Section 3(a) below.
(vi) No Material Adverse
Change in Business. Except as otherwise stated therein, since the respective dates as of which information is given in the
Registration Statement, the General Disclosure Package or the Prospectus, (i) there has not been any change in the capital stock
(other than the issuance of Ordinary Shares upon exercise of stock options and warrants described as outstanding in, and the grant
of options and awards under the Company’s existing stock-based compensation plans (the “Company Stock
Plans”) described in, the issuance of Ordinary Shares pursuant to this Agreement, and the issuance of any stock upon the
conversion of Company securities described in the Registration Statement, the General Disclosure Package and the Prospectus, and the
repurchase or retirement of shares of capital stock pursuant to agreements providing for an option to repurchase or a right of first
refusal on behalf of the Company pursuant to the Company’s repurchase rights), any change in short-term debt or long-term debt
of the Company, or any dividend or distribution of any kind declared, set aside for payment, paid or made by the Company on any
class of capital stock, or any material adverse change, or any development that would reasonably be expected to result in a material
adverse change, in or affecting the business, properties, management, financial position, shareholders’ equity or results of
operations of the Company, whether or not arising in the ordinary course of business (a “Material Adverse
Effect”); (ii) the Company has not entered into any transaction or agreement (whether or not in the ordinary course of
business) that is material to the Company or incurred any liability or obligation, direct or contingent, that is material to the
Company; (iii) the Company has not sustained any loss or interference with its business that is material to the Company and that is
either from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute
or any action, order or decree of any court or arbitrator or governmental or regulatory authority, except in each case as otherwise
disclosed in the Registration Statement, the General Disclosure Package and the Prospectus; and (iv) there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class of its capital stock.
4
(vii) Disclosures in
Commission Filings. Except for the failure to timely file a Current Report on Form 8-K with respect to Item 5.07 (Submission of
Matters to a Vote of Security Holders) in connection with the annual general meeting of shareholders held on June 29, 2026, the
results of which were subsequently disclosed in the Company’s Quarterly Report on Form 10-Q for the fiscal quarter ended June
30, 2026 (the “Late Filing”), the Company has filed all SEC Reports on a timely basis or has received a valid
extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. The Late Filing
does not affect the Company’s eligibility to use Form S-3 for the Offering, and the Company has not received any comment,
notice or other communication from the Commission with respect to the Late Filing. As of their respective dates, the SEC Reports
complied in all material respects with the requirements of the 1933 Act and the 1934 Act, as applicable, and none of the SEC
Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not
misleading. The Company has never been an issuer subject to Rule 144(i) under the 1933 Act.
(viii) Independent
Accountants. Reliant CPA PC, whose report is filed with the Commission and incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus, is an independent registered public accounting firm as required by the
1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations and the Public Company Accounting Oversight Board (United
States). Haskell & White LLP is an independent registered public accounting firm as required by the 1933 Act, the 1933 Act
Regulations, the 1934 Act, the 1934 Act Regulations and the Public Company Accounting Oversight Board (United States). Haskell &
White LLP, whose report with respect to the combined financial statements of Arcade Technology LLC and Arcade Realty LLC (together,
“Arcade”) is filed with the Commission and incorporated by reference in the Registration Statement, the General
Disclosure Package and the Prospectus, is an independent accountant with respect to Arcade as required by the 1933 Act and the 1933
Act Regulations. Reliant CPA PC and Haskell & White LLP are each referred to herein as an “Auditor” and
together as the “Auditors.”
(ix) Financial Statements;
Pro Forma Financial Information; Non-GAAP Financial Measures. The financial statements (including the related notes thereto) of
the Company included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus,
together with the related schedules and notes, comply as to form in all material respects with Regulation S-X under the 1933 Act and
present fairly, in all material respects, the financial position of the Company and its consolidated Subsidiaries (as defined below)
at the dates indicated and the consolidated statements of operations and comprehensive loss, changes in convertible preferred shares
and shareholders’ deficit and cash flows of the Company for the periods specified; said financial statements have been
prepared in conformity with U.S. generally accepted accounting principles (“GAAP”) applied on a consistent basis
throughout the periods covered thereby, except in the case of unaudited interim financial statements, which are subject to normal
year-end adjustments and do not contain certain footnotes as permitted by the applicable rules of the Commission, and any supporting
schedules, if any, present fairly, in all material respects, the information required to be stated therein. The financial statements
(including the related notes thereto) of Arcade included or incorporated by reference in the Registration Statement, the General
Disclosure Package and the Prospectus comply as to form in all material respects with Regulation S-X under the 1933 Act and present
fairly, in all material respects, the combined financial position of Arcade at the dates indicated and the combined statements of
operations, changes in members’ equity and cash flows of Arcade for the periods specified; said financial statements have been
prepared in conformity with GAAP applied on a consistent basis throughout the periods covered thereby, except in the case of
unaudited interim financial statements, which are subject to normal year-end adjustments and do not contain certain footnotes as
permitted by the applicable rules of the Commission. The pro forma financial information (including the related notes thereto)
included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus complies as
to form in all material respects with Article 11 of Regulation S-X under the 1933 Act, the assumptions underlying such pro forma
financial information are reasonable and are set forth therein, and the pro forma adjustments have been properly applied to the
historical amounts in the compilation of such information. The summary financial information, if any, and other financial data
included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus have been
derived from the accounting records of the Company or Arcade, as applicable, and present fairly, in all material respects, the
information shown therein and have been compiled on a basis consistent with that of the audited financial statements included
therein. Except as included therein, no historical or pro forma financial statements or supporting schedules are required to be
included or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus under the 1933
Act or the 1933 Act Regulations. All disclosures contained in the Registration Statement, the General Disclosure Package or the
Prospectus, or incorporated by reference therein, regarding “non-GAAP financial measures” (as such term is defined by
the rules and regulations of the Commission) comply with Regulation G of the 1934 Act, and Item 10 of Regulation S-K, to the extent
applicable. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus fairly presents the information called for in all material respects and
has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
5
(x) Solvency. Based on
the consolidated financial condition of the Company as of the date hereof, after giving effect to the receipt by the Company of the
proceeds from the sale of the Shares hereunder, (i) the fair saleable value of the Company’s assets exceeds the amount that
will be required to be paid on or in respect of the Company’s existing debts and other liabilities (including known contingent
liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably small capital to carry on its business
as now conducted and as proposed to be conducted, and (iii) the current cash flow of the Company, together with the proceeds the
Company would receive, were it to liquidate all of its assets, after taking into account all anticipated uses of the cash, would be
sufficient to pay all amounts on or in respect of its liabilities when such amounts are required to be paid. The Company does not
intend to incur debts beyond its ability to pay such debts as they mature (taking into account the timing and amounts of cash to be
payable on or in respect of its debt). The Company has no knowledge of any facts or circumstances which lead it to believe that it
will file for reorganization or liquidation under the bankruptcy or reorganization laws of any jurisdiction within one year from the
date hereof.
(xi) Capitalization. The
authorized, issued and outstanding shares of capital stock of the Company are as set forth in the Registration Statement, the General
Disclosure Package and the Prospectus (except for subsequent issuances, if any, (A) pursuant to this Agreement, (B) pursuant to reservations,
agreements or employee benefit plans referred to in the Registration Statement, the General Disclosure Package and the Prospectus or (C)
pursuant to the conversion of convertible securities or exercise of options referred to in the Registration Statement, the General Disclosure
Package and the Prospectus). The outstanding shares of capital stock of the Company have been duly authorized and are validly issued,
fully paid and non-assessable. None of the outstanding shares of capital stock of the Company was issued in violation of the preemptive
or other similar rights of any securityholder of the Company.
(xii) Securities Sold
Pursuant to this Agreement. The Shares to be sold through the Agent have been duly authorized for issuance and sale pursuant to
this Agreement and, when issued and delivered by the Company pursuant to this Agreement against payment of the consideration set
forth herein, will be validly issued and fully paid and non-assessable; and the issuance of the Shares is not subject to the
preemptive or other similar rights of any securityholder of the Company. The Ordinary Shares conform to all statements relating
thereto contained in this Agreement, the Registration Statement, the General Disclosure Package and the Prospectus and such
description conforms to the rights set forth in the instruments defining the same. No holder of Shares will be subject to personal
liability by reason of being such a holder. All corporate action required to be taken for the authorization, issuance and sale of
the Shares has been duly and validly taken. The Shares, when delivered against payment therefor, will be freely transferable to or
for the account of the Agent and the initial purchasers thereof. There are no restrictions on subsequent transfers of the Shares
under the laws of the Netherlands that generally restrict subsequent transfers of the Shares.
(xiii)
Registration Rights. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus,
to the extent that any person has the right to require the Company to register any securities for sale under the 1933 Act by reason of
the filing of the Registration Statement with the Commission or the issuance and sale of the Shares, those rights have been waived as
of the date of this Agreement with respect to such filing or issuance and sale of the Shares pursuant to this Agreement.
(xiv) Authorization of Agreement.
This Agreement has been duly authorized, executed and delivered by the Company.
6
(xv) No Conflicts, etc. Neither
the Company nor any Subsidiary is (A) in violation of its charter, by-laws or similar organizational document, (B) in default in the performance
or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan
or credit agreement, note, lease or other agreement or instrument to which the Company or any Subsidiary is a party or by which either
of them may be bound or to which any of the properties or assets of the Company or any Subsidiary is subject (collectively, “Agreements
and Instruments”), except for such defaults that would not, individually or in the aggregate, result in a Material Adverse Effect,
or (C) in violation of any law, statute, rule, regulation, judgment, order, writ or decree of any arbitrator, court, governmental body,
regulatory body, administrative agency or other authority, body or agency having jurisdiction over the Company or its Subsidiaries or
any of their respective properties, assets or operations (each, a “Governmental Entity”), except for such violations
that would not, individually or in the aggregate, result in a Material Adverse Effect. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package
and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described
therein under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder have been duly authorized
by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict
with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any
lien, charge or encumbrance upon any properties or assets of the Company or its Subsidiaries pursuant to, the Agreements and Instruments
(except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not, individually or in
the aggregate, result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter, by-laws
or similar organizational document of the Company or its Subsidiaries or any law, statute, rule, regulation, judgment, order, writ or
decree of any Governmental Entity. As used herein, a “Repayment Event” means any event or condition which gives the
holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require
the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or its Subsidiaries.
(xvi) Transactions Contemplated
Herein. The Company has all corporate power and authority to enter into this Agreement and to carry out the provisions and conditions
hereof. No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental
Entity is necessary or required for the performance by the Company of its obligations hereunder, in connection with the offering, issuance
or sale of the Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as have been already
obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the rules of the Exchange, state securities laws or the rules
of the Financial Industry Regulatory Authority, Inc. (“FINRA”).
(xvii) D&O Questionnaires.
To the Company’s knowledge, all information contained in the questionnaires (the “Questionnaires”) most recently
completed by each of the Company’s directors and officers (the “Insiders”) and provided to the Agent is true
and correct in all respects and the Company has not become aware of any information which would cause the information disclosed in the
Questionnaires to become inaccurate and incorrect.
(xviii) Litigation; Governmental
Proceedings. There is no action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the knowledge of the
Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties before or by any court, arbitrator,
governmental or administrative agency or regulatory authority (federal, state, county, local or foreign) (collectively, an “Legal
Action”) which (i) adversely affects or challenges the legality, validity or enforceability of this Agreement or the Shares
or (ii) could, if there were an unfavorable decision, have or reasonably be expected to result in a Material Adverse Effect. Neither the
Company nor any Subsidiary, nor, to the Company’s knowledge, any director or officer thereof, is or has been the subject of any
Legal Action involving a claim of violation of or liability under federal or state securities laws or a claim of breach of fiduciary duty.
There has not been, and to the knowledge of the Company, there is not pending or contemplated, any investigation by the Commission involving
the Company or any current or former director or officer of the Company. The Commission has not issued any stop order or other order suspending
the effectiveness of any registration statement filed by the Company or any Subsidiary under the 1934 Act or the 1933 Act.
7
(xix) Good Standing.
The Company has been duly organized and is validly existing under the laws of its jurisdiction of organization, is duly qualified to
do business and is in good standing (to the extent such concept is applicable) in each jurisdiction in which its ownership or lease
of property or the conduct of its business requires such qualification, and has all power and authority necessary to own or hold its
properties and to conduct the business in which it is engaged, except where the failure to be so qualified or in good standing (to
the extent such concept is applicable) or have such power or authority would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. Other than as disclosed in Exhibit 21.1 of the Company’s most recent Annual Report
on Form 10-K, the Company does not have any direct or indirect Subsidiaries and does not own or control, directly or indirectly, any
corporation, association or other entity.
(xx) Insurance. The Company
and its Subsidiaries carry or are entitled to the benefits of insurance, with financially sound and reputable insurers, in such amounts
and covering such risks as is generally maintained by companies of established repute engaged in the same or similar business, and all
such insurance is in full force and effect. The Company has no reason to believe that it or its Subsidiaries will not be able (A) to renew
its existing insurance coverage as and when such policies expire or (B) to obtain comparable coverage from similar institutions as may
be necessary or appropriate to conduct its business as now conducted and at a cost that would not result in a Material Adverse Effect.
Neither of the Company nor its Subsidiaries has been denied any insurance coverage which it has sought or for which it has applied.
(xxi) Finder’s Fees.
Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, there are no contracts, agreements
or understandings between the Company and any person that would give rise to a valid claim against the Company or the Agent for a brokerage
commission, finder’s fee or other like payment in connection with the Offering.
(xxii)
Payments Within Twelve Months. Except as described in the Registration Statement, the General Disclosure
Package and the Prospectus, the Company has not made any direct or indirect payments (in cash, securities or otherwise) to: (i) any person,
as a finder’s fee, consulting fee or otherwise, in consideration of such person raising capital for the Company or introducing to
the Company persons who raised or provided capital to the Company; (ii) any FINRA member; or (iii) any person or entity that has any direct
or indirect affiliation or association with any FINRA member, within the twelve months prior to the date of this Agreement, other than
the payment to the Agent as provided hereunder in connection with the Offering.
(xxiii) Use of
Proceeds. The Company will use the net proceeds received by it from the sale of the Shares in all material respects in the
manner specified in the Registration Statement, the General Disclosure Package and the Prospectus under the heading “Use of
Proceeds.” None of the net proceeds of the Offering will be paid by the Company to any participating FINRA member or its
affiliates, except as specifically authorized herein.
(xxiv) FINRA
Affiliation. No officer, director or any beneficial owner of 10% or more of the Company’s unregistered securities has any
direct or indirect affiliation or association with any FINRA member (as determined in accordance with the rules and regulations of
FINRA) that is participating in the Offering. The Company will advise the Agent and the Agent’s counsel if it learns that any
officer, director or owner of 10% or more of (i) the Company’s outstanding Ordinary Shares or (ii) any securities of the
Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Ordinary Shares, including, without
limitation, any debt, preferred shares, right, option, warrant or other instrument that is at any time convertible into or
exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Ordinary Shares is or becomes an affiliate or
associated person of a FINRA member firm. Except as disclosed in the Registration Statement, the General Disclosure Package and the
Prospectus, the Company (i) does not have any material lending or other relationship with any bank or lending affiliate of the Agent
and (ii) does not intend to use any of the proceeds from the sale of the Shares to repay any outstanding debt owed to any affiliate
of the Agent.
8
(xxv) Information. All information
provided by the Company in its FINRA questionnaire to Agent’s counsel specifically for use by Agent’s counsel in connection
with its Public Offering System filings (and related disclosure) with FINRA is true, correct and complete in all material respects.
(xxvi) Foreign Corrupt Practices
Act. None of the Company, its Subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee, affiliate
or other person acting on behalf of the Company or its Subsidiaries is aware of or has taken any action, directly or indirectly, that
would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder
(the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality of interstate
commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property,
gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined
in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the
FCPA and the Company has and, to the knowledge of the Company, its affiliates have conducted their businesses in compliance with the FCPA
and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure,
continued compliance therewith.
(xxvii)
Compliance with OFAC. None of the Company, its Subsidiaries or, to the knowledge of the Company, any director, officer,
agent, employee, affiliate or representative of the Company or its Subsidiaries is an individual or entity (“Person”)
currently the subject or target of any sanctions administered or enforced by the United States Government, including, without limitation,
the U.S. Department of the Treasury’s Office of Foreign Assets Control, the United Nations Security Council, the European Union,
His Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”), nor is the Company
located, organized or resident in a country or territory that is the subject of Sanctions; and the Company will not directly or indirectly
use the proceeds of the sale of the Shares, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture
partners or other Person, to fund any activities of or business with any Person, or in any country or territory, that, at the time of
such funding, is the subject of Sanctions or in any other manner that will result in a violation by any Person (including any Person participating
in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions.
(xxviii)
Forward-Looking Statements. The Company had a reasonable basis for, and made in good faith, each “forward-looking statement”
(within the meaning of Section 27A of the 1933 Act or Section 21E of the 1934 Act) contained or incorporated by reference in the Registration
Statement, the General Disclosure Package or the Prospectus.
(xxix) Money
Laundering Laws. The operations of the Company and its Subsidiaries are and have been conducted at all times in
compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act
of 1970, as amended, the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines, issued, administered or enforced by any Governmental Entity (collectively, the
“Money Laundering Laws”); and no action, suit or proceeding by or before any Governmental Entity involving the
Company or its Subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company,
threatened.
9
(xxx)
Cybersecurity. (i)(x) There has been no security breach or other compromise of or relating to any of the Company’s
or any Subsidiary’s information technology and computer systems, networks, hardware, software, data (including the data of its respective
customers, employees, suppliers, vendors and any third party data maintained by or on behalf of it), equipment or technology (collectively,
“IT Systems and Data”) and (y) the Company and the Subsidiaries have not been notified of, and has no knowledge of
any event or condition that would reasonably be expected to result in, any security breach or other compromise to its IT Systems and Data;
(ii) the Company and the Subsidiaries are presently in compliance with all applicable laws or statutes and all judgments, orders, rules
and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating
to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation
or modification, except as would not, individually or in the aggregate, have a Material Adverse Effect; (iii) the Company and the Subsidiaries
have implemented and maintained commercially reasonable safeguards to maintain and protect its material confidential information and the
integrity, continuous operation, redundancy and security of all IT Systems and Data; and (iv) the Company and the Subsidiaries have implemented
backup and disaster recovery technology consistent with industry standards and practices.
(xxxi) Privacy
and Data Protection. The Company and its Subsidiaries have operated their business in a manner compliant in all material
respects with all United States federal, state, local and non-United States privacy, data security and data protection laws and
regulations applicable to the Company’s collection, use, transfer, protection, disposal, disclosure, handling, storage and
analysis of personal data. The Company and its Subsidiaries have been and are in compliance in all material respects with internal
policies and procedures designed to ensure the integrity and security of the data collected, handled or stored in connection with
its business. The Company and its Subsidiaries have taken reasonable steps to maintain the confidentiality of its personally
identifiable information, protected health information, consumer information and other confidential information of the Company, its
Subsidiaries and any third parties in its possession (“Sensitive Company Data”). The tangible or digital
information technology systems (including computers, screens, servers, workstations, routers, hubs, switches, networks, data
communications lines, technical data and hardware), software and telecommunications systems used or held for use by the Company and
its Subsidiaries (the “Company IT Assets”) are adequate and operational for, in accordance with their
documentation and functional specifications, the business of the Company and its Subsidiaries as now operated and as currently
proposed to be conducted as described in the Registration Statement, the General Disclosure Package and the Prospectus. The Company
and its Subsidiaries have used reasonable efforts to establish, and have established, commercially reasonable disaster recovery and
security plans, procedures and facilities for the business consistent with industry standards and practices in all material
respects, including, without limitation, for the Company IT Assets and data held or used by or for the Company and its Subsidiaries.
The Company and its Subsidiaries have not suffered or incurred any security breaches, compromises or incidents with respect to any
Company IT Asset or Sensitive Company Data, except where such breaches, compromises or incidents would not reasonably be expected
to, individually or in the aggregate, result in a Material Adverse Effect; and there has been no unauthorized or illegal use of or
access to any Company IT Asset or Sensitive Company Data by any unauthorized third party. The Company and its Subsidiaries have not
been required to notify any individual of any information security breach, compromise or incident involving Sensitive Company
Data.
(xxxii)
Bank Holding Company Act. Neither the Company nor any of its Subsidiaries or affiliates is subject to the Bank Holding Company
Act of 1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the
“Federal Reserve”). Neither the Company nor any of its Subsidiaries or affiliates owns or controls, directly or indirectly,
five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent (25%) or more of the total
equity of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its
Subsidiaries or affiliates exercises a controlling influence over the management or policies of a bank or any entity that is subject to
the BHCA and to regulation by the Federal Reserve.
10
(xxxiii)
Possession of Licenses and Permits. The Company and its Subsidiaries possess such permits, licenses, approvals, consents
and other authorizations (collectively, “Governmental Licenses”) issued by the appropriate Governmental Entities necessary
to conduct the business now operated by them, except where the failure so to possess would not, individually or in the aggregate, result
in a Material Adverse Effect. The Company and its Subsidiaries are in compliance with the terms and conditions of all Governmental Licenses,
except where the failure so to comply would not, individually or in the aggregate, result in a Material Adverse Effect. The Company has
fulfilled and performed all of its material obligations with respect to the Governmental Licenses and, to the knowledge of the Company,
no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any
other material impairment of the rights of the Company as a holder of any permit, except where the failure to so fulfill or perform, or
the occurrence of such event, would not, individually or in the aggregate, result in a Material Adverse Effect. All of the Governmental
Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental
Licenses to be in full force and effect would not, individually or in the aggregate, result in a Material Adverse Effect. Neither the
Company nor its Subsidiaries has received any notice of proceedings relating to the revocation or modification of any Governmental Licenses
which, individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse
Effect.
(xxxiv) Officers’ Certificate.
Any certificate signed by any officer of the Company and delivered to the Agent or to counsel for the Agent in connection with the Offering,
or the sale of the Shares, shall be deemed a representation and warranty by the Company to the Agent as to the matters covered thereby.
The Company has a reasonable basis for making each of the representations set forth in this Section 1. The Company acknowledges that the
Agent and, for purposes of the opinions to be delivered pursuant to this Agreement, counsel to the Company and counsel to the Agent, will
rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
(xxxv) Subsidiaries.
Each subsidiary of the Company (each, a “Subsidiary” and, collectively, the “Subsidiaries”)
has been duly organized and is validly existing in good standing (to the extent such concept is applicable) under the laws of the
jurisdiction of its incorporation or organization, has corporate or similar power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus
and is duly qualified to transact business and is in good standing (to the extent such concept is applicable) in each jurisdiction
in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business,
except where the failure to be so qualified or to be in good standing (to the extent such concept is applicable) would not result in
a Material Adverse Effect. Except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the
Prospectus, all of the issued and outstanding capital stock of each Subsidiary has been duly authorized and validly issued, is fully
paid and non-assessable and is owned by the Company, directly or through Subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity. None of the outstanding shares of capital stock of any Subsidiary was issued
in violation of the preemptive or similar rights of any securityholder of such Subsidiary. The only Subsidiaries of the Company are
the entities listed on Exhibit 21.1 of the Company’s most recent Annual Report on Form 10-K.
(xxxvi)
No Relationships with Customers and Suppliers. No relationship, direct or indirect, exists between or among the Company or any
of its Subsidiaries on the one hand, and the directors, officers, shareholders, customers or suppliers of the Company or any of its Subsidiaries
on the other hand, which is required by the 1933 Act or the 1933 Act Regulations to be described in the Registration Statement, the General
Disclosure Package or the Prospectus and which is not so described.
11
(xxxvii) Transactions With Affiliates
and Employees. Except as set forth in the General Disclosure Package, none of the officers or directors of the Company or any Subsidiary
and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party to any transaction with
the Company or any Subsidiary (other than for services as employees, officers and directors), including any contract, agreement or other
arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, providing
for the borrowing of money from or lending of money to or otherwise requiring payments to or from, any officer, director or such employee
or, to the knowledge of the Company, any entity in which any officer, director, or any such employee has a substantial interest or is
an officer, director, trustee, shareholder, member or partner, in each case in excess of $120,000 other than for (i) payment of salary
or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company and (iii) other employee benefits,
including stock option agreements under any stock option plan of the Company.
(xxxviii) Accounting Controls
and Disclosure Controls. The Company and each of its Subsidiaries maintain effective internal control over financial reporting
(as defined under Rule 13a-15 and 15d-15 under the 1934 Act Regulations) and a system of internal accounting controls sufficient
to provide reasonable assurances that (A) transactions are executed in accordance with management’s general or specific authorization;
(B) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability
for assets; (C) access to assets is permitted only in accordance with management’s general or specific authorization; (D) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to
any differences; and (E) the interactive data in eXtensible Business Reporting Language incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus fairly presents the information called for in all material respects and is
prepared in accordance with the Commission’s rules and guidelines applicable thereto. Except as described in the Registration Statement,
the General Disclosure Package and the Prospectus, since the end of the Company’s most recent audited fiscal year, there has been
(1) no material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (2) no change
in the Company’s internal control over financial reporting that has materially adversely affected, or is reasonably likely to materially
adversely affect, the Company’s internal control over financial reporting. The Company and each of its Subsidiaries maintain
an effective system of disclosure controls and procedures (as defined in Rule 13a-15 and Rule 15d-15 under the 1934 Act Regulations) that
are designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the 1934
Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms, and
is accumulated and communicated to the Company’s management, including its principal executive officer or officers and principal
financial officer or officers, as appropriate, to allow timely decisions regarding disclosure.
(xxxix)
Compliance with the Sarbanes-Oxley Act of 2002. There is and has been no failure on the part of the Company or, to
the Company’s knowledge, any of the Company’s directors or officers, in their capacities as such, to comply in all material
respects with any applicable provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith,
with which the Company is required to comply, including Section 402 related to loans.
(xl) No Investment Company Status.
Neither the Company nor any Subsidiary is required, and upon the issuance and sale of the Shares as herein contemplated and the application
of the net proceeds therefrom as described in the Registration Statement, the General Disclosure Package and the Prospectus will not be
required, to register as an “investment company” under the Investment Company Act of 1940, as amended.
(xli) No
Labor Disputes. No labor dispute with the employees of the Company or its Subsidiaries exists or, to the knowledge of the
Company, is imminent, and the Company is not aware of any existing or imminent labor disturbance by the employees of any of its or
its Subsidiaries’ principal suppliers, manufacturers, customers or contractors, which, in either case, would result in a
Material Adverse Effect.
12
(xlii) Title
to Intellectual Property. Except as described in the Registration Statement, the General Disclosure Package and the
Prospectus, the Company owns or has valid, binding and enforceable licenses or other rights under the patents, patent applications,
licenses, inventions, copyrights, know how (including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service marks, trade names or other intellectual property necessary
for, or used in the conduct, or the proposed conduct, of the business of the Company in the manner described in the Registration
Statement, the General Disclosure Package and the Prospectus (collectively, the “Intellectual Property”); the
patents, trademarks, and copyrights, if any, included within the Intellectual Property are valid, enforceable, and subsisting; other
than as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, (A) the Company is not obligated
to pay a material royalty, grant a license to, or provide other material consideration to any third party in connection with the
Intellectual Property, (B) the Company has not received any notice of any claim of infringement, misappropriation or conflict with
any asserted rights of others with respect to any of the Company’s services, processes or Intellectual Property, (C) to the
knowledge of the Company, neither the sale nor use of any of the discoveries, inventions, services or processes of the Company
referred to in the Registration Statement, the General Disclosure Package or the Prospectus do or will, to the knowledge of the
Company, infringe, misappropriate or violate any right or valid patent claim of any third party, (D) none of the technology employed
by the Company has been obtained or is being used by the Company in material violation of any contractual obligation binding on the
Company or, to the Company’s knowledge, upon any of its officers, directors or employees or otherwise in violation of the
rights of any persons, (E) to the knowledge of the Company, no third party has any ownership right in or to any Intellectual
Property that is owned by the Company, other than any co-owner of any patent constituting Intellectual Property who is listed on the
records of the U.S. Patent and Trademark Office (the “USPTO”) and any co-owner of any patent application
constituting Intellectual Property who is named in such patent application, and, to the knowledge of the Company, no third party has
any ownership right in or to any Intellectual Property in any field of use that is exclusively licensed to the Company, other than
any licensor to the Company of such Intellectual Property, (F) there is no material infringement by third parties of any
Intellectual Property, (G) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by
others challenging the Company’s rights in or to any Intellectual Property, and (H) there is no pending or, to the
Company’s knowledge, threatened action, suit, proceeding or claim by others challenging the validity or scope of any
Intellectual Property. The Company is in compliance with the terms of each agreement pursuant to which Intellectual Property has
been licensed to the Company, and all such agreements are in full force and effect.
(xliii) Patents
and Patent Applications. All patents and patent applications owned by or licensed to the Company or under which the Company has
rights have, to the knowledge of the Company, been duly and properly filed and maintained; to the knowledge of the Company, the
parties prosecuting such patent applications have complied with their duty of candor and disclosure to the USPTO in connection with
such applications; and the Company is not aware of any facts required to be disclosed to the USPTO that were not disclosed to the
USPTO and which would preclude the grant of a patent in connection with any such application or would reasonably be expected to form
the basis of a finding of invalidity with respect to any patents that have issued with respect to such applications. To the
Company’s knowledge, all patents and patent applications owned by the Company and filed with the USPTO or any foreign or
international patent authority (the “Company Patent Rights”) and all patents and patent applications in-licensed
by the Company and filed with the USPTO or any foreign or international patent authority (the “In-licensed Patent
Rights”) have been duly and properly filed; the Company believes it has complied with its duty of candor and disclosure to
the USPTO for the Company Patent Rights and, to the Company’s knowledge, the licensors of the In-licensed Patent Rights have
complied with their duty of candor and disclosure to the USPTO for the In-licensed Patent Rights.
(xliv) Payment
of Taxes. All United States federal income tax returns of the Company and its Subsidiaries required by law to be filed
have been filed and all taxes shown by such returns or otherwise assessed, which are due and payable, have been paid, except
assessments against which appeals have been or will be promptly taken and as to which adequate reserves have been provided in
conformity with GAAP. The United States federal income tax returns of the Company through the fiscal year ended December 31, 2025
have been settled and no assessment in connection therewith has been made against the Company. The Company and its Subsidiaries have
filed all other tax returns that are required to have been filed by them pursuant to applicable foreign, state, local or other law
except insofar as the failure to file such returns would not result in a Material Adverse Effect, and have paid all taxes due
pursuant to such returns or pursuant to any assessment received by the Company and its Subsidiaries, except for such taxes, if any,
as are being contested in good faith and as to which adequate reserves have been established by the Company. The charges, accruals
and reserves on the books of the Company in respect of any income and corporation tax liability for any years not finally determined
are, in conformity with GAAP, adequate to meet any assessments or re-assessments for additional income tax for any years not finally
determined, except to the extent of any inadequacy that would not result in a Material Adverse Effect.
13
(xlv)
ERISA Compliance. The Company and its Subsidiaries and any “employee benefit plan” (as defined under the Employee
Retirement Income Security Act of 1974, as amended, and the regulations and published interpretations thereunder (collectively, “ERISA”))
established or maintained by the Company, its Subsidiaries or their ERISA Affiliates (as defined below) are in compliance in all material
respects with ERISA. “ERISA Affiliate” means, with respect to the Company or any of its Subsidiaries, any member of
any group of organizations described in Sections 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended, and the regulations
and published interpretations thereunder (the “Code”) of which the Company or such Subsidiary is a member. No “reportable
event” (as defined under ERISA) has occurred or is reasonably expected to occur with respect to any “employee benefit plan”
established or maintained by the Company, its Subsidiaries or any of their ERISA Affiliates. No “employee benefit plan” established
or maintained by the Company, its Subsidiaries or any of their ERISA Affiliates, if such “employee benefit plan” were terminated,
would have any “amount of unfunded benefit liabilities” (as defined under ERISA). Neither the Company, its Subsidiaries nor
any of their ERISA Affiliates has incurred or reasonably expects to incur any liability under (i) Title IV of ERISA with respect to termination
of, or withdrawal from, any “employee benefit plan” or (ii) Sections 412, 4971, 4975 or 4980B of the Code. Each employee benefit
plan established or maintained by the Company, its Subsidiaries or any of their ERISA Affiliates that is intended to be qualified under
Section 401(a) of the Code is so qualified and nothing has occurred, whether by action or failure to act, which would cause the loss of
such qualification.
(xlvi) Environmental
Laws. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus or would not,
individually or in the aggregate, result in a Material Adverse Effect, (A) neither the Company nor any Subsidiary is in violation of
any federal, state, local or foreign statute, law, rule, regulation, ordinance, code, policy or rule of common law or any judicial
or administrative interpretation thereof, including any judicial or administrative order, consent, decree or judgment, relating to
pollution or protection of human health, the environment (including, without limitation, ambient air, surface water, groundwater,
land surface or subsurface strata) or wildlife, including, without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum
products, asbestos-containing materials or mold (collectively, “Hazardous Materials”) or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials (collectively,
“Environmental Laws”), (B) the Company and its Subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in compliance with their requirements, (C) there are no pending or, to
the knowledge of the Company threatened, administrative, regulatory or judicial actions, suits, demands, demand letters, claims,
liens, notices of noncompliance or violation, investigation or proceedings relating to any Environmental Law against the Company or
any Subsidiary and (D) there are no events or circumstances that would reasonably be expected to form the basis of an order for
clean-up or remediation, or an action, suit or proceeding by any private party or Governmental Entity, against or affecting the
Company or any Subsidiary relating to Hazardous Materials or any Environmental Laws.
(xlvii)
Title to Property. The Company and its Subsidiaries have good and marketable title to all real property owned by them and
good title to all other properties owned by them, in each case, free and clear of all mortgages, pledges, liens, security interests, restrictions
or encumbrances of any kind except such as (A) are described in the Registration Statement, the General Disclosure Package and the Prospectus
or (B) do not, individually or in the aggregate, materially affect the value of such property and do not materially interfere with the
use made and proposed to be made of such property by the Company or its Subsidiaries; and all of the leases and subleases material to
the business of the Company and its Subsidiaries, considered as one enterprise, and under which the Company or its Subsidiaries holds
properties described in the Registration Statement, the General Disclosure Package or the Prospectus, are in full force and effect, and
neither the Company nor any such Subsidiary has any notice of any material claim of any sort that has been asserted by anyone adverse
to the rights of the Company or any Subsidiary under any of the leases or subleases mentioned above, or affecting or questioning the rights
of the Company or such Subsidiary to the continued possession of the leased or subleased premises under any such lease or sublease.
14
(xlviii) Company
Not Ineligible Issuer. At the time of filing the Registration Statement and any post-effective amendment thereto, at the earliest
time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the 1933
Act Regulations) of the Shares and at the date hereof, the Company was not and is not an “ineligible issuer,” as defined in
Rule 405, without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company
be considered an ineligible issuer.
(xlix) Industry
Data. Any statistical and market-related data included in the Registration Statement, the General Disclosure
Package or the Prospectus are based on or derived from sources that the Company believes, after reasonable inquiry, to be reliable
and accurate and, to the extent required, the Company has obtained the written consent to the use of such data from such
sources.
(l) Minute Books. The
minute books of the Company and each of its Subsidiaries have been made available to the Agent and counsel for the Agent, and such
books (i) contain a materially complete summary of all meetings and actions of the board of directors (including each board
committee) and shareholders of the Company (or analogous governing bodies and interest holders, as applicable), and each of its
Subsidiaries for the periods made available, and (ii) accurately in all material respects reflect all transactions referred to in
such minutes.
(li) Integration. Neither
the Company, nor any of its affiliates, nor any person acting on its or their behalf has, directly or indirectly, made any offers or sales
of any security or solicited any offers to buy any security, under circumstances that would cause the Offering to be integrated with prior
offerings by the Company for purposes of any applicable shareholder approval provisions of any trading market or exchange on which any
of the securities of the Company are listed or designated.
(lii) No Stabilization. Neither
the Company nor any affiliate of the Company has taken, nor will the Company or any affiliate take, directly or indirectly, any action
which is designed, or would be expected, to cause or result in, or which constitutes, the stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the Shares or to result in a violation of Regulation M under the 1934
Act.
(liii) Accuracy of Exhibits.
There are no contracts or documents which are required to be described in the Registration Statement, the General Disclosure Package or
the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required.
(liv) Stock Options.
Except where the failure to do so would not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect, with respect to the stock options (the “Stock Options”) granted pursuant to the Company Stock Plans, (i)
each Stock Option, if any, intended to qualify as an “incentive stock option” under Section 422 of the Internal Revenue
Code of 1986, as amended, so qualifies, (ii) each grant of a Stock Option was duly authorized no later than the date on which the
grant of such Stock Option was by its terms to be effective by all necessary corporate action, including, as applicable, approval by
the board of directors of the Company (or a duly constituted and authorized committee thereof) and any required shareholder approval
by the necessary number of votes or written consents, and, to the knowledge of the Company (other than with respect to the execution
and delivery by the Company) the award agreement governing such grant (if any) was duly executed and delivered by each party
thereto, (iii) each such grant was made, in all material respects, in accordance with the terms of the Company Stock Plans, the 1934
Act and all other applicable laws and regulatory rules or requirements, including the rules of the Exchange and any other exchange
on which Company securities are traded, and (iv) each such grant was properly accounted for in accordance with GAAP in the financial
statements (including the related notes) of the Company. Each Company Stock Plan is accurately described in all material respects in
the Registration Statement, the General Disclosure Package and the Prospectus. Each stock option granted by the Company under the
Company Stock Plans was granted with an exercise price at least equal to the fair market value of the Ordinary Shares on the date
such stock option would be considered granted under GAAP and applicable law, and no such stock option has been backdated. The
Company has not knowingly granted, and there is no and has been no Company policy or practice to knowingly grant, stock options
prior to, or otherwise knowingly coordinate the grant of stock options with, the release or other public announcement of material
information regarding the Company or its Subsidiaries or their financial results.
15
(lv) Board of
Directors. The Company’s board of directors is comprised of the persons set forth in the SEC Reports. The qualifications
of the persons serving as board members and the overall composition of the Company’s board of directors comply with the
Sarbanes-Oxley Act of 2002 and the rules promulgated thereunder applicable to the Company and the rules of the Exchange. At least
one member of the Company’s board of directors qualifies as a “financial expert” as such term is defined under the
Sarbanes-Oxley Act of 2002 and the rules promulgated thereunder and the rules of the Exchange. In addition, at least a majority of
the persons serving on the Company’s board of directors qualify as “independent” as defined under the rules of the
Exchange.
(lvi) [Reserved.]
(lvii) Absence
of Proceedings. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, there is
no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity, or any comparable regulatory
authority in any jurisdiction now pending or, to the knowledge of the Company, threatened, against or affecting the Company or its
Subsidiaries, which would reasonably be expected to result in a Material Adverse Effect, or which would reasonably be expected to
materially and adversely affect their respective properties or assets or the consummation of the transactions contemplated in this
Agreement or the performance by the Company of its obligations hereunder; and the aggregate of all pending legal or governmental
proceedings to which the Company or any such Subsidiary is a party or of which any of their respective properties or assets is the
subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary
routine litigation incidental to the business, would not reasonably be expected to result in a Material Adverse Effect.
(lviii) Stamp Duties.
Except as disclosed in each of the Registration Statement, the General Disclosure Package and the Prospectus, and except for any net
income, capital gains or franchise taxes imposed on the Agent by the governments of the Netherlands, the United States, or any
political subdivision or taxing authority thereof or therein as a result of any present or former connection between the Agent and
the jurisdiction imposing such tax, no stamp duties or other issuance or transfer taxes (for the avoidance of doubt this does not
include any value added tax or similar taxes) are payable by or on behalf of the Agent in the Netherlands, the United States or any
political subdivision or tax authority thereof solely in connection with (i) the execution, delivery and performance of this
Agreement; or (ii) the issuance, sale and delivery of the Shares as contemplated herein and in the General Disclosure Package.
(lix) Emerging Growth
Company Status. From the time of the initial filing of the Registration Statement with the Commission through the date hereof,
the Company has been and is an “emerging growth company,” as defined in Section 2(a) of the 1933 Act (an
“Emerging Growth Company”).
(lx) Export Controls.
The Company and its Subsidiaries are, and during the past three (3) years have been, in compliance in all material respects with all
applicable export control laws and regulations, including the International Traffic in Arms Regulations (22 C.F.R. Parts 120-130),
the Export Administration Regulations (15 C.F.R. Parts 730-774) and the Arms Export Control Act (22 U.S.C. § 2778)
(collectively, “Export Control Laws”). The Company and its Subsidiaries have obtained all export licenses,
agreements and other authorizations required under applicable Export Control Laws for the export, re-export, deemed export and
transfer of their products, services, software and technology, except where the failure to obtain such authorizations would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Neither the Company nor any Subsidiary
has received any written communication from any governmental authority alleging any material violation of any Export Control Laws,
and there is no pending or, to the knowledge of the Company, threatened Legal Action against the Company or any Subsidiary with
respect to any Export Control Laws, except as would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(lxi) Application of
Takeover Protections. The Company and the board of directors of the Company have taken all necessary action, if any, in order to
render inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights
agreement) or other similar anti-takeover provision under the Company’s articles of association (or similar charter documents)
or the laws of its jurisdiction of organization that is or could become applicable as a result of the Agent and the Company
fulfilling their obligations or exercising their rights under this Agreement.
(lxii) U.S. Real Property
Holding Corporation. The Company is not and has never been a U.S. real property holding corporation within the meaning of
Section 897 of the Internal Revenue Code of 1986, as amended, and the Company shall so certify upon the Agent’s request.
16
(lxiii) PFIC Status.
Subject to the qualifications, limitations, exceptions and assumptions set forth in the Prospectus, the Company does not believe
that it was a passive foreign investment company (a “PFIC”), as defined in section 1297 of the Internal Revenue
Code of 1986, as amended, for the year ended December 31, 2025 and does not currently expect, based on the information available to
it, to be a PFIC for the year ending December 31, 2026.
(lxiv) Jurisdiction.
Except as provided by laws or statutes generally applicable to transactions of the type described in this Agreement, neither the
Company nor any of its Subsidiaries or their properties or assets has immunity under the laws of New York or United States law from
any legal action, suit or proceeding, from the giving of any relief in any such legal action, suit or proceeding, from set-off or
counterclaim, from the jurisdiction of New York or United States federal court, from service of process, attachment upon or prior to
judgment, or attachment in aid of execution of judgment, or from execution of a judgment, or other legal process or proceeding for
the giving of any relief or for the enforcement of a judgment, in any such court with respect to their respective obligations,
liabilities or any other matter under or arising out of or in connection herewith; and, to the extent that the Company or any of its
Subsidiaries or any of its properties, assets or revenues may have or may hereafter become entitled to any such right of immunity in
any such court in which proceedings arising out of, or relating to the transactions contemplated by this Agreement, may at any time
be commenced, the Company will waive, or will cause its Subsidiaries to waive, such right to the extent permitted by law; neither
the Company nor any of its properties or assets has any immunity from any legal action, suit or proceeding, from the giving of any
relief in any such legal action, suit or proceeding, from set-off or counterclaim, from the jurisdiction of any court or from any
legal process (whether through service of process or notice, attachment upon or prior to judgment, attachment in aid of execution or
from execution of a judgment, or otherwise) under the laws of the Netherlands.
(lxv) Enforceability of
Judgments. Any final judgment for a fixed or determined sum of money rendered by any U.S. federal or New York state court
located in the State of New York having jurisdiction under its own laws in respect of any suit, action or proceeding against the
Company based upon this Agreement would generally be declared enforceable against the Company by the courts of the Netherlands.
(lxvi) Choice of Law.
The choice of laws of the State of New York as the governing law of this Agreement is a valid choice of law under the laws of the
Netherlands and subject to the provisions of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June
2008 relating to the law applicable to contractual obligations (Rome I), will be given effect to by the courts of the Netherlands,
subject to the restrictions described under the caption “Enforcement of Judgments” in the Registration Statement, the
General Disclosure Package and the Prospectus. The Company has the power to submit, and pursuant to Section 20 of this Agreement,
has legally, validly, effectively and irrevocably submitted, to the personal jurisdiction of each New York state and United States
federal court sitting in the City of New York and has validly and irrevocably waived any objection to the laying of venue of any
suit, action or proceeding brought in such court.
(lxvii) Indemnification
Validity. The indemnification and contribution provisions set forth in Sections 7 and 21 hereof do not contravene Dutch law or
public policy.
(lxviii) No Rights to
Purchase Preferred Shares. The issuance and sale of the Shares as contemplated hereby will not cause any holder of any shares of
capital stock, securities convertible into or exchangeable or exercisable for capital stock or options, warrants or other rights to
purchase capital stock or any other securities of the Company to have any right to acquire any preferred shares of the Company.
(lxix) Sales Agency Agreement.
The Company is not currently party to any other sales agency agreements or other similar arrangements with any agent or any other representative
in respect of at the market offerings of the Ordinary Shares.
17
Section 2. Sale
and Delivery of Shares.
(a) Subject
to the terms and conditions set forth herein, the Company agrees to issue and sell the Shares pursuant to this Agreement exclusively through
the Agent acting as sales agent from time to time, and the Agent agrees to use its commercially reasonable efforts to sell the Shares
as sales agent for the Company. Sales of the Shares, if any, through the Agent acting as sales agent may be made in negotiated transactions
or transactions that are deemed to be “at-the-market offerings” as defined in Rule 415 under the 1933 Act, including sales
made directly on the Exchange, or sales made to or through a market maker other than on an exchange or through an electronic communications
network.
(b) The
Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Agent on that trading day (other than
a day on which the Exchange is scheduled to close prior to its regular weekday closing time, each, a “Trading Day”)
that the Company has satisfied its obligations under Section 6 of this Agreement and that the Company has instructed the Agent to make
such sales (“Sales Notice”). For the avoidance of doubt, the foregoing limitation shall not apply to sales solely to
employees or security holders of the Company or its Subsidiaries, or to a trustee or other person acquiring such securities for the accounts
of such persons in which the Agent is acting for the Company in a capacity other than as Agent under this Agreement. On any Trading Day,
the Company may transmit such Sales Notice by instructing the Agent by telephone (confirmed promptly by email, which confirmation will
be promptly acknowledged by the Agent) as to the maximum number of Shares to be sold by the Agent on such Trading Day (in any event not
in excess of the number available for issuance under the Prospectus and the currently effective Registration Statement), the minimum price
per Share at which such Shares may be sold (provided that the Company shall ensure that such minimum price is always such that sales of
Shares cannot result in Net Proceeds (as defined below) being less than the aggregate nominal value of such Shares) and any other limitations
specified by the Company and mutually agreed by the Agent. Subject to the terms and conditions hereof, the Agent shall use its commercially
reasonable efforts to sell as sales agent all of the Shares so designated by the Company. The Company and the Agent each acknowledge and
agree that (A) there can be no assurance that the Agent will be successful in selling the Shares, (B) the Agent will incur no liability
or obligation to the Company or any other person or entity if they do not sell Shares for any reason other than a failure by the Agent
to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to
sell such Shares as required by this Agreement, and (C) the Agent shall be under no obligation to purchase Shares on a principal basis
pursuant to this Agreement unless the Company and the Agent enter into a separate written agreement setting forth the terms of such sale.
(c) Notwithstanding
the foregoing, the Company shall not authorize the issuance and sale of, and the Agent as sales agent shall not be obligated to use its
commercially reasonable efforts to sell, any Shares (i) at a price lower than the minimum price per share therefor authorized from time
to time, or (ii) in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement,
in each case, by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Agent in writing.
In addition, the Company may, upon notice to the Agent, suspend the offering of the Shares or the Agent may, upon notice to the Company,
suspend the offering of the Shares with respect to which the Agent is acting as sales agent for any reason and at any time; provided,
however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect
to the Shares sold hereunder prior to the giving of such notice. Any notice given pursuant to the preceding sentence may be given by telephone
(confirmed promptly by email, which confirmation will be promptly acknowledged).
18
(d) The
gross sales price of any Shares sold pursuant to this Agreement by the Agent acting as sales agent of the Company shall be the market
price prevailing at the time of sale for shares of the Ordinary Shares sold by the Agent on the Exchange or otherwise, at prices relating
to prevailing market prices or at negotiated prices. The compensation payable to the Agent for sales of Shares with respect to which the
Agent acts as sales agent shall be 3.0% of the gross sales price of the Shares sold pursuant to this Agreement. The remaining proceeds,
after further deduction for any transaction fees imposed by any governmental, regulatory or self-regulatory organization in respect of
such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). The Agent shall
notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required.
(e) If
acting as a sales agent hereunder, the Agent shall provide written confirmation to the Company following the close of trading on the Exchange,
each day in which Shares are sold under this Agreement setting forth the number of Shares sold on such day, the aggregate gross sales
proceeds of the Shares, the Net Proceeds to the Company and the compensation payable by the Company to such Agent with respect to such
sales.
(f) Under
no circumstances shall the aggregate offering price or number, as the case may be, of Shares sold pursuant to this Agreement, exceed the
aggregate offering price or number, as the case may be, of Ordinary Shares (i) available for issuance under the Prospectus and the then
currently effective Registration Statement (including any limit set forth in General Instruction I.B.6 thereof, if applicable), (ii) that
remain available for issuance under the authorized share capital of the Company (maatschappelijk kapitaal) (less Ordinary Shares
issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s
authorized share capital) or (iii) that the Company’s board of directors, or a duly authorized committee thereof, is authorized
to issue and sell from time to time in accordance with the Company’s articles of association, applicable resolutions of the Company’s
general meeting of shareholders and applicable Dutch law (including any required authorization to exclude pre-emptive rights), and notified
to the Agent in writing. Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the
foregoing limitations on the aggregate offering price or number, as the case may be, of Shares sold pursuant to this Agreement shall be
the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. In addition, under
no circumstances shall any Shares with respect to which the Agent acts as sales agent be sold at a price lower than the minimum price
therefor authorized from time to time by the Company’s board of directors, or a duly authorized committee thereof, and notified
to the Agent in writing.
(g) Settlement
for sales of the Shares pursuant to this Section 2 will occur on the trading day following the date on which such sales are made, unless
another date shall be agreed to by the Company and the Agent (each such day, a “Settlement Date”). On or before each
Settlement Date, subject to the delivery of the related Net Proceeds or the Net Proceeds Confirmation (as defined below) by the Agent
to the Company, the Company will issue the Shares sold through the Agent for settlement on such date to its transfer agent pursuant to
a deed of issue (each, a “Deed of Issue”) and will cause its transfer agent to deliver such Shares to the Agent against
payment of the Net Proceeds from the sale of such Shares, which Shares shall in all cases be duly authorized, freely tradeable, transferable,
registered Ordinary Shares in good deliverable form. Settlement for all Shares shall be effected by book-entry delivery of Shares to the
Agent’s account at The Depository Trust Company against payments by the Agent of the Net Proceeds from the sale of such Shares in
same day funds delivered to an account designated by the Company; provided that, if the Net Proceeds cannot be delivered to the
Company on or prior to such Settlement Date, the Agent may instead deliver a written confirmation that it is keeping such Net Proceeds
in escrow for the sole benefit and at the instruction of the Company (a “Net Proceeds Confirmation”), in which case
such Net Proceeds shall be delivered to the Company promptly following such Settlement Date. If the Company shall default on its obligation
to deliver Shares on any Settlement Date, the Company shall (i) indemnify and hold the Agent harmless against any loss, claim or damage
arising from or as a result of such default by the Company and (ii) pay the Agent any commission to which it would otherwise be entitled
absent such default. In addition, if, following receipt of the Net Proceeds, the Company or its transfer agent defaults in its obligation
to deliver duly authorized, freely tradeable, transferable, registered Shares in good deliverable form by 2:30 p.m., New York City time,
on a Settlement Date (other than as a result of a failure by the Agent to provide instructions for delivery), the Company will take all
necessary action to cause the full amount of any Net Proceeds delivered to the Company’s account with respect to such settlement,
together with any costs incurred by the Agent and/or its clearing firm in connection with recovering such Net Proceeds, to be returned
to the Agent or its clearing firm no later than 5:00 p.m., New York City time, on such Settlement Date, by wire transfer of immediately
available funds to an account designated by the Agent or its clearing firm.
19
(h) Notwithstanding
any other provision of this Agreement, the Company and the Agent agree that no sales of Shares shall take place, and the Company shall
not request the sale of any Shares that would be sold, and the Agent shall not be obligated to sell any Shares, during any period in which
the Company is, or could be deemed to be, in possession of material non-public information.
(i) At
each Applicable Time, Settlement Date, Registration Statement Amendment Date (as defined below), Company Periodic Report Date (as defined
below) and at each time of delivery of a Sales Notice, the Company shall be deemed to have affirmed each representation and warranty contained
in this Agreement. Any obligation of the Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company
as sales agent shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance
by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of
this Agreement.
Section 3. Covenants.
The Company agrees with the Agent:
(a) During
any period when the delivery of a prospectus is required in connection with the offering or sale of Shares (whether physically or through
compliance with Rule 153 or 172, or in lieu thereof, a notice referred to in Rule 173(a) under the 1933 Act), (i) to make no further amendment
or any supplement to the Registration Statement or the Prospectus prior to any Settlement Date which shall be disapproved by the Agent
promptly after reasonable notice thereof and to advise the Agent, promptly after it receives notice thereof, of the time when any amendment
to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Prospectus has been filed and
to furnish the Agent with copies thereof, (ii) to file promptly all other materials required to be filed by the Company with the Commission
pursuant to Rule 433(d) under the 1933 Act, (iii) to file promptly all reports and any definitive proxy or information statements required
to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act, (iv) to advise the Agent,
promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending
the use of the Prospectus or other prospectus in respect of the Shares, of the suspension of the qualification of the Shares for offering
or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission
for the amending or supplementing of the form of the Registration Statement or the Prospectus or for additional information, and (v) in
the event of the issuance of any such stop order or of any such order preventing or suspending the use of the Prospectus in respect of
the Shares or suspending any such qualification, to promptly use its commercially reasonable efforts to obtain the withdrawal of such
order; and in the event of any such issuance of a notice of objection, promptly to take such reasonable steps as may be necessary to permit
offers and sales of the Shares by the Agent, which may include, without limitation, amending the Registration Statement or filing a new
registration statement, at the Company’s expense (references herein to the Registration Statement shall include any such amendment
or new registration statement).
(b) Promptly
from time to time to take such action as the Agent may reasonably request to qualify the Shares for offering and sale under the securities
laws of such jurisdictions as the Agent may request and to comply with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete the sale of the Shares, provided that in connection therewith
the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;
and to promptly advise the Agent of the receipt by the Company of any notification with respect to the suspension of the qualification
of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
20
(c) During
any period when the delivery of a prospectus is required (whether physically or through compliance with Rules 153 or 172, or in lieu thereof,
a notice referred to in Rule 173(a) under the 1933 Act) in connection with the offering or sale of Shares, the Company will make available
to the Agent, as soon as practicable after the execution of this Agreement, and thereafter from time to time furnish to the Agent, copies
of the most recent Prospectus in such quantities and at such locations as the Agent may reasonably request for the purposes contemplated
by the 1933 Act. During any period when the delivery of a prospectus is required (whether physically or through compliance with Rules
153 or 172, or in lieu thereof, a notice referred to in Rule 173(a) under the 1933 Act) in connection with the offering or sale of Shares,
and if at such time any event shall have occurred 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 any material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall
be necessary during such same period to amend or supplement the Prospectus or to file under the 1934 Act any document incorporated by
reference in the Prospectus in order to comply with the 1933 Act or the 1934 Act, to notify the Agent and to file such document and to
prepare and furnish without charge to the Agent as many written and electronic copies as the Agent may from time to time reasonably request
of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance.
(d) To
make generally available to its securityholders as soon as practicable, but in any event not later than sixteen months after the effective
date of the Registration Statement (as defined in Rule 158(c) under the 1933 Act), an earnings statement of the Company and its Subsidiaries
(which need not be audited) complying with Section 11(a) of the 1933 Act and the rules and regulations of the Commission thereunder (including,
at the option of the Company, Rule 158).
(e) To
use the Net Proceeds received by it from the sale of the Shares pursuant to this Agreement in the manner specified in the General Disclosure
Package and the Prospectus.
(f) In
connection with the offering and sale of the Shares, the Company will file with the Exchange all documents and notices, and make all certifications,
required by the Exchange of companies that have securities that are listed or quoted on the Exchange and will maintain such listings or
quotations.
(g) To
not take, directly or indirectly, and to cause its affiliates to refrain from taking, any action designed to cause or result in, or that
has constituted or might reasonably be expected to constitute, under the 1934 Act or otherwise, the stabilization or manipulation of the
price of any securities of the Company to facilitate the sale or resale of the Shares.
(h) At
each Applicable Time, each Settlement Date, each Registration Statement Amendment Date (as defined below), each Company Periodic Report
Date (as defined below) and at each time of delivery of a Sales Notice, the Company shall be deemed to have affirmed each representation,
warranty, and other agreement contained in this Agreement. In each Annual Report on Form 10-K or Quarterly Report on Form 10-Q filed by
the Company in respect of any quarter in which sales of Shares were made by or through the Agent under this Agreement (each date on which
any such document is filed, and any date on which an amendment to any such document is filed, a “Company Periodic Report Date”),
the Company shall set forth with regard to such quarter the number of Shares sold through the Agent under this Agreement and the Net Proceeds
received by the Company with respect to sales of Shares pursuant to this Agreement.
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(i) Upon
commencement of the offering of Shares under this Agreement and promptly after each (A) date the Registration Statement or the Prospectus
shall be amended, supplemented or replaced (other than (1) by an amendment, supplement or replacement providing solely for the determination
of the terms of the Shares, (2) in connection with the filing of a prospectus supplement that contains solely the information set forth
in Section 3(h), (3) in connection with the filing of any current reports on Form 8-K (other than any current reports on Form 8-K which
contain financial statements, supporting schedules or other financial data, including any current report on Form 8-K under Item 2.02 of
such form that is considered “filed” under the 1934 Act) or (4) by a prospectus supplement relating to the offering of other
securities (including, without limitation, other Ordinary Shares)) (each such date, a “Registration Statement Amendment Date”)
and (B) Company Periodic Report Date (such commencement or recommencement date and each such date referred to in (A) and (B), a “Representation
Date”), the Company will furnish or cause to be furnished forthwith to the Agent a certificate dated the date of effectiveness
of such amendment or the date of filing with the Commission of such supplement or other document, as the case may be, in a form reasonably
satisfactory to the Agent to the effect that the statements contained in the certificate referred to in Section 6(f) of this Agreement
which were last furnished to the Agent are true and correct at the time of such amendment, supplement or filing, as the case may be, as
though made at and as of such time (except that such statements shall be deemed to relate to the Registration Statement, the General Disclosure
Package and the Prospectus as amended and supplemented to such time) or, in lieu of such certificate, a certificate of the same tenor
as the certificate referred to in said Section 6(f), but modified as necessary to relate to the Registration Statement and the Prospectus
as amended and supplemented, or to the document incorporated by reference into the Prospectus, to the time of delivery of such certificate.
As used in this paragraph, to the extent there shall be an Applicable Time on or following any Representation Date, promptly shall be
deemed to be on or prior to the next succeeding Applicable Time; provided that no Sales Notice shall be delivered by the Company,
and no sales of Shares shall be made pursuant to any outstanding Sales Notice, on or after any Representation Date until the certificate
required by this Section 3(i) in connection with such Representation Date has been furnished to the Agent. The requirement to provide
a certificate under this Section 3(i) shall be waived for any Representation Date occurring at a time at which no Sales Notice is pending,
which waiver shall continue until the date the Company delivers a Sales Notice hereunder. Notwithstanding the foregoing, if the Company
subsequently decides to sell Shares following a Representation Date when the Company relied on such waiver and did not provide the Agent
with a certificate under this Section 3(i), then before the Company delivers the Sales Notice or the Agent sells any Shares pursuant thereto,
the Company shall provide the Agent with a certificate as described above, dated the date of such Sales Notice.
(j) Upon
commencement of the offering of Shares under this Agreement and within two (2) Trading Days after each Representation Date, the Company
will furnish or cause to be furnished to the Agent and to counsel to the Agent the written opinion and negative assurance representation
of Haynes and Boone, LLP, U.S. counsel for the Company (“Company Counsel”), or other counsel reasonably satisfactory
to the Agent, in a form and substance reasonably satisfactory to the Agent and its counsel; provided, however, that if Company
Counsel has previously furnished to the Agent such written opinion and negative assurance in the form previously agreed between the Company
and the Agent, then Company Counsel may, in respect of any future Representation Date, furnish the Agent with a letter signed by such
counsel (each, a “Reliance Letter”) in lieu of such opinion and negative assurance of such counsel to the effect that
the Agent may rely on the prior opinion and negative assurance of such counsel delivered pursuant to this Section 3(j) to the same extent
as if it were dated the date of such Reliance Letter (except that statements in such prior opinion and negative assurance shall be deemed
to relate to the Registration Statement and the Prospectus as amended or supplemented to the date of such Reliance Letter); provided,
further, that with respect to any opinion and negative assurance representation letter required to be delivered pursuant to this
Section 3(j) in connection with a Representation Date, no Sales Notice shall be delivered by the Company, and no sales of Shares shall
be made pursuant to any outstanding Sales Notice, on or after such Representation Date until such opinion and representation letter have
been furnished to the Agent and to counsel to the Agent. Further, the requirement to furnish or cause to be furnished an opinion and a
negative assurance representation letter under this Section 3(j) shall be waived for such Representation Date occurring on a date on which
no Sales Notice pursuant to this Agreement is outstanding, provided that if the Company subsequently decides to sell Shares following
any such Representation Date when the Company relied on such waiver and did not provide the Agent an opinion and a negative assurance
representation letter pursuant to this Section 3(j), then before the Company instructs the Agent to sell Shares pursuant to this Agreement,
the Company shall provide the Agent such opinion and negative assurance representation letter. The requirement to furnish or cause to
be furnished an opinion or a Reliance Letter (but not with respect to a negative assurance representation) under this Section 3(j) shall
be waived for any Representation Date other than a Registration Statement Amendment Date or the date on which the Company files its Annual
Report on Form 10-K or a material amendment thereto under the 1934 Act, unless
the Agent reasonably requests such deliverable required by this Section 3(j) in connection with a Representation Date, upon which request
such deliverable shall be deliverable hereunder.
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(k) Upon
commencement of the offering of Shares under this Agreement and within two (2) Trading Days after each Representation Date, the Company
will furnish or cause to be furnished to the Agent and to counsel to the Agent the written opinion of CMS Derks Star Busmann N.V., Dutch
counsel for the Company (“Dutch Counsel”), or other Dutch counsel reasonably satisfactory to the Agent, in a form and
substance reasonably satisfactory to the Agent and its counsel; provided, however, that if Dutch Counsel has previously
furnished to the Agent such written opinion in the form previously agreed between the Company and the Agent, then Dutch Counsel may, in
respect of any future Representation Date, furnish the Agent with a letter signed by such counsel (each, a “Dutch Reliance Letter”)
in lieu of such opinion of such counsel to the effect that the Agent may rely on the prior opinion of such counsel delivered pursuant
to this Section 3(k) to the same extent as if it were dated the date of such Dutch Reliance Letter (except that statements in such prior
opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented to the date of such Dutch
Reliance Letter); provided, further, that with respect to any opinion required to be delivered pursuant to this Section
3(k) in connection with a Representation Date, no Sales Notice shall be delivered by the Company, and no sales of Shares shall be made
pursuant to any outstanding Sales Notice, on or after such Representation Date until such opinion has been furnished to the Agent and
to counsel to the Agent. Further, the requirement to furnish or cause to be furnished an opinion under this Section 3(k) shall be waived
for such Representation Date occurring on a date on which no Sales Notice pursuant to this Agreement is outstanding, provided that
if the Company subsequently decides to sell Shares following any such Representation Date when the Company relied on such waiver and did
not provide the Agent an opinion pursuant to this Section 3(k), then before the Company instructs the Agent to sell Shares pursuant to
this Agreement, the Company shall provide the Agent such opinion. The requirement to furnish or cause to be furnished an opinion or Dutch
Reliance Letter under this Section 3(k) shall be waived for any Representation Date other than a Registration Statement Amendment Date
or the date on which the Company files its Annual Report on Form 10-K or a material amendment thereto under the 1934 Act, unless
the Agent reasonably requests such deliverable required by this Section 3(k) in connection with a Representation Date, upon which request
such deliverable shall be deliverable hereunder.
(l) Upon
commencement of the offering of Shares under this Agreement and within two (2) Trading Days after each Representation Date, the Company
will cause each of the Auditors (or other independent accountants satisfactory to the Agent) to furnish to the Agent a letter (and, in
the case of Haskell & White LLP, a separate letter with respect to the financial statements and certain financial information of Arcade),
dated the date of effectiveness of such amendment or the date of filing of such supplement or other document with the Commission, as the
case may be, in form reasonably satisfactory to the Agent and its counsel, in the case of the letter delivered upon the commencement of
the offering, in form and substance customary for “comfort letters” delivered to sales agents in at-the-market offerings,
and, in the case of each subsequent letter, of the same tenor as the letter delivered upon the commencement of the offering, but modified
as necessary to relate to the Registration Statement, the General Disclosure Package and the Prospectus, as amended and supplemented,
or to the document incorporated by reference into the Prospectus, to the date of such letter; provided that with respect to any
letter required to be delivered pursuant to this Section 3(l) in connection with a Representation Date, no Sales Notice shall be delivered
by the Company, and no sales of Shares shall be made pursuant to any outstanding Sales Notice, on or after such Representation Date until
such letter has been furnished to the Agent. Further, the requirement to furnish or cause to be furnished a letter under this Section
3(l) shall be waived for such Representation Date occurring on a date on which no Sales Notice pursuant to this Agreement is outstanding,
provided that if the Company subsequently decides to sell Shares following any such Representation Date when the Company relied
on such waiver and did not provide the Agent a letter pursuant to this Section 3(l), then before the Company instructs the Agent to sell
Shares pursuant to this Agreement, the Company shall provide the Agent such letter.
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(m) The
Company consents to the Agent trading in the Ordinary Shares for the Agent’s own account and for the accounts of its clients at
the same time as sales of Shares occur pursuant to this Agreement.
(n) The
Company will cooperate timely with any reasonable due diligence review conducted by the Agent or its counsel from time to time in connection
with the transactions contemplated hereby, including, without limitation, and upon reasonable notice, providing information and making
available documents and appropriate corporate officers, during regular business hours and at the Company’s principal offices, as
the Agent may reasonably request.
(o) Without
the prior written consent of the Agent, during each period commencing on the second Trading Day immediately prior to the date on which
the Company has provided a Sales Notice to the Agent pursuant to Section 2(b) and ending on the close of business of the second Trading
Day immediately following the Settlement Date of the last Shares sold pursuant to such Sales Notice, the Company will not, (A) offer,
pledge, announce the intention to sell, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant for the sale of, lend or otherwise transfer or dispose of, directly or indirectly, any Ordinary
Shares or securities convertible into or exchangeable or exercisable for or repayable with Ordinary Shares, or file any registration statement
under the 1933 Act with respect to any of the foregoing (other than a shelf registration statement under Rule 415 under the 1933 Act,
a registration statement on Form S-8 or post-effective amendment to the Registration Statement) or (B) enter into any swap or other agreement
or any transaction that transfers in whole or in part, directly or indirectly, any of the economic consequence of ownership of the Ordinary
Shares, or any securities convertible into or exchangeable or exercisable for or repayable with Ordinary Shares, whether any such swap
or transaction described in clause (A) or (B) above is to be settled by delivery of Ordinary Shares or such other securities, in cash
or otherwise. The foregoing sentence shall not apply to (w) the Shares to be offered and sold through the Agent pursuant to this Agreement,
(x) equity incentive awards approved by the board of directors of the Company or the compensation committee thereof or the issuance of
Ordinary Shares upon exercise thereof, (y) Shares or securities convertible into or exchangeable for Shares as consideration for mergers,
acquisitions, other business combinations, joint ventures or strategic alliances occurring after the date of this Agreement which are
not used for capital raising purposes and (z) Shares issuable upon exercise or conversion of outstanding warrants or other derivative
securities.
(p) Upon
commencement of the offering of the Shares under this Agreement (and upon the recommencement of the offering of the Shares under this
Agreement following the termination of a suspension of sales hereunder lasting more than 30 Trading Days), and at each Representation
Date for which no waiver is applicable pursuant to this Agreement, the Company will conduct a due diligence session, in form and substance,
reasonably satisfactory to the Agent, which shall include representatives of management, Company Counsel and then-responsible independent
accountants. The Company shall cooperate timely with any reasonable due diligence request from or review conducted by the Agent or its
agents from time to time in connection with the transactions contemplated by this Agreement, including, without limitation, providing
information and available documents and access to appropriate corporate officers and the Company’s agents during regular business
hours, and timely furnishing or causing to be furnished such certificates, letters and opinions from the Company, its officers and its
agents, as the Agent may reasonably request. The Company shall reimburse the Agent for Agent’s counsel’s fees in connection
with each such Representation Date plus any incidental expenses incurred by the Agent in connection with each such Representation Date.
(q) If
to the knowledge of the Company, the conditions set forth in Section 6 shall not have been satisfied as of the applicable Settlement Date,
the Company will offer to any person who has agreed to purchase Shares from the Company as the result of an offer to purchase solicited
by the Agent the right to refuse to purchase and pay for such Shares.
24
(r) Each
acceptance by the Company of an offer to purchase the Shares hereunder shall be deemed to be an affirmation to the Agent that the representations
and warranties of the Company contained in or made pursuant to this Agreement are true and correct as of the date of such acceptance as
though made at and as of such date, and an undertaking that such representations and warranties will be true and correct as of the Settlement
Date for the Shares relating to such acceptance or as of the time of delivery relating to such sale, as the case may be, as though made
at and as of such date (except that such representations and warranties shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented relating to such Shares).
(s) The
Company shall ensure that there are at all times sufficient Ordinary Shares to provide for the issuance, free of any preemptive rights,
out of its authorized but unissued Ordinary Shares or Ordinary Shares held in treasury, of the maximum aggregate number of Shares authorized
for issuance by the Company’s board of directors pursuant to the terms of this Agreement. The Company will use its commercially
reasonable efforts to cause the Shares to be listed for trading on the Exchange and to maintain such listing.
(t) The
Company shall ensure that, at all times during the term of this Agreement while any Sales Notice is in effect, (i) the authorized share
capital of the Company is sufficient to permit the issuance of all Shares that may be issued pursuant to such Sales Notice and (ii) the
Company’s board of directors holds a valid authorization under the Company’s articles of association, resolutions of the general
meeting of shareholders and applicable Dutch law to issue such Shares and to limit or exclude pre-emptive rights in respect thereof. The
Company shall promptly notify the Agent of any expiration, revocation or reduction of any such authorization and shall use its commercially
reasonable efforts to seek renewal of such authorization from its general meeting of shareholders prior to its expiration.
(u) Obligation
Under 1934 Act. During any period when the delivery of a prospectus relating to the Shares is required (including in circumstances
where such requirement may be satisfied pursuant to Rule 172, 173 or any similar rule) to be delivered under the 1933 Act, the Company
will file all documents required to be filed with the Commission pursuant to the 1934 Act within the time periods required by the 1934
Act and the regulations thereunder.
(v) The
Company shall cooperate with the Agent and use its commercially reasonable efforts to permit the Shares to be eligible for clearance and
settlement through the facilities of DTC.
(w) The
Company will, at any time during the term of this Agreement, as supplemented from time to time, advise the Agent immediately after it
shall have received notice or obtained knowledge thereof, of any information or fact that would alter or affect any opinion, certificate,
letter and other document provided to the Agent pursuant to Section 6 herein.
(x) If
any sales are made pursuant to this Agreement which are not made in “at the market” offerings as defined in Rule 415, the
Company shall file a Prospectus Supplement describing the terms of such transaction, the amount of Shares sold, the price thereof, the
Agent’s compensation, and such other information as may be required pursuant to Rule 424 and Rule 430B, as applicable, within the
time required by Rule 424.
(y) To
the extent that the Registration Statement is not available for the sales of the Shares as contemplated by this Agreement, the Company
shall file a new registration statement with respect to any additional Ordinary Shares necessary to complete such sales of the Shares
and shall cause such registration statement to become effective as promptly as practicable. The Company may also, in its discretion and
upon prior notice to the Agent, file a new registration statement on Form S-3 relating to the Shares to replace the then-current Registration
Statement. After the effectiveness of any such registration statement, all references to “Registration Statement” and
“Initial Registration Statement” included in this Agreement shall be deemed to include such new registration statement,
including all documents incorporated by reference therein pursuant to Item 12 of Form S-3, all references to “Base Prospectus”
included in this Agreement shall be deemed to include the final form of base prospectus, including all documents incorporated therein
by reference, included in any such registration statement at the time such registration statement became effective, and all references
to “Prospectus Supplement” and “Prospectus” shall be deemed to include the prospectus supplement
relating to the Shares filed pursuant to Rule 424(b) in connection with such registration statement.
25
(z) If,
immediately prior to the third anniversary of the initial effective date of the Registration Statement (the “Renewal Deadline”),
any of the Shares remain unsold and this Agreement has not been terminated, the Company will, prior to the Renewal Deadline, file a new
shelf registration statement on Form S-3 relating to the Shares that may be offered and sold pursuant to this Agreement, in a form reasonably
satisfactory to the Agent and its counsel, and will use its commercially reasonable efforts to cause such registration statement to be
declared effective within 180 days after the Renewal Deadline. The Company will take all other reasonable actions necessary or appropriate
to permit the public offer and sale of the Shares to continue as contemplated in the expired registration statement and this Agreement,
and the provisions of Section 3(y) shall apply to such new registration statement.
(aa) The Company will promptly
notify the Agent if the Company ceases to be an Emerging Growth Company at any time during the term of this Agreement.
Section 4. Free
Writing Prospectus.
(a) (i)
The Company represents and agrees that, without the prior consent of the Agent, it has not made and will not make any offer relating to
the Shares that would constitute a “free writing prospectus” as defined in Rule 405 under the 1933 Act; and
(ii) the Agent represents and agrees
that, without the prior consent of the Company, it has not made and will not make any offer relating to the Shares that would constitute
a free writing prospectus required to be filed with the Commission.
(b) The
Company has complied and will comply with the requirements of Rule 433 under the 1933 Act applicable to any Issuer Free Writing Prospectus
(including any free writing prospectus identified in Section 4(a) hereof), including timely filing with the Commission or retention where
required and legending.
Section 5. Payment
of Expenses. The Company agrees to pay the costs and expenses incident to the performance of its obligations under this Agreement,
whether or not the transactions contemplated hereby are consummated, including without limitation: (i) the preparation, printing or reproduction
and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), the Prospectus and
each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery
(including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, the Prospectus,
and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested
for use in connection with the offering and sale of the Shares; (iii) the preparation, printing, authentication, issuance and delivery
of certificates for the Shares, including any stamp or transfer taxes in connection with the original issuance and sale of the Shares,
and the fees and expenses of the transfer agent for the Shares; (iv) the printing (or reproduction) and delivery of this Agreement, any
blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the
Shares; (v) the registration of the Shares under the 1934 Act, if applicable, and the listing of the Shares on the trading market; (vi)
any registration or qualification of the Shares for offer and sale under the securities or blue sky laws of the several states (including
filing fees and the reasonable fees and expenses of counsel for the Agent relating to such registration and qualification); (vii) the
transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective
purchasers of the Shares; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including
local and special counsel) for the Company; (ix) the filing fee under FINRA Rule 5110; (x) the reasonable fees and expenses of the Agent’s
counsel (excluding any periodic due diligence fees provided for under Section 3(p)), which shall be paid upon the execution of this Agreement;
and (xi) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
26
Section 6. Conditions
of Agent’s Obligation. The obligations of the Agent hereunder shall be subject, in the Agent’s discretion, to the
condition that all representations and warranties and other statements of the Company herein or in certificates of any officer of the
Company delivered pursuant to the provisions hereof are true and correct as of the time of the execution of this Agreement and as of each
Registration Statement Amendment Date, Company Periodic Report Date, Applicable Time, Settlement Date and time of delivery of a Sales
Notice, to the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed, and the following
additional conditions:
(a) The
Registration Statement shall have been declared effective by the Commission and shall be available for all offers and sales of Shares,
and the Prospectus Supplement shall have been filed with the Commission pursuant to Rule 424(b) under the 1933 Act, any other material
required to be filed by the Company pursuant to Rule 433(d) under the 1933 Act shall have been filed with the Commission within the applicable
time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any
part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no
notice of objection of the Commission to the use of the form of the Registration Statement or any post-effective amendment thereto pursuant
to Rule 401(g)(2) under the 1933 Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any
Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information
on the part of the Commission shall have been complied with to the reasonable satisfaction of the Agent.
(b) On
every date specified in Section 3(j) hereof and on such other dates as reasonably requested by the Agent, the Agent shall have received
the written opinion or opinions and negative assurance statement of Company Counsel, dated as of such date and in form and substance reasonably
satisfactory to the Agent.
(c) On
every date specified in Section 3(k) hereof and on such other dates as reasonably requested by the Agent, the Agent shall have received
the written opinion or opinions of Dutch Counsel, dated as of such date and in form and substance reasonably satisfactory to the Agent.
(d) On
every date specified in Section 3(l) hereof and on such other dates as reasonably requested by the Agent, the Company shall have requested
and caused each of the Auditors (or other independent accountants reasonably satisfactory to the Agent) to have furnished to the Agent
letters (which may refer to letters previously delivered to the Agent), dated as of such date, in form and substance reasonably satisfactory
in all respects to the Agent.
(e) [Reserved].
(f) On
every date specified in Section 3(i) hereof and on such other dates as reasonably requested by the Agent, the Company shall have furnished
or caused to be furnished to the Agent a certificate of the Company signed by the Chief Executive Officer or the President and the principal
financial or accounting officer of the Company, dated as of such date, to the effect that the signers of such certificate have carefully
examined the Registration Statement, the Prospectus, any Prospectus Supplement and any documents incorporated by reference therein and
any supplements or amendments thereto and this Agreement and that:
(i) the representations
and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date;
27
(ii) the Company
has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such
date;
(iii) no stop order
suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that
purpose have been instituted or, to the Company’s knowledge, threatened;
(iv) the Company
does not currently possess and will not be in possession of any material non-public information at the time of delivery of any Sales
Notice and/or as long as such Sales Notice is effective; and
(v) since the date of
the most recent financial statements included in the Registration Statement, the Prospectus and the documents incorporated by reference
therein, there has been no Material Adverse Effect on the condition (financial or otherwise), earnings, business or properties of the
Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Registration Statement and the Prospectus.
(g) Since
the date of the latest audited financial statements then included or incorporated by reference in the General Disclosure Package and the
Prospectus, no Material Adverse Effect shall have occurred.
(h) The
Company shall have complied with the provisions of Section 3(c) hereof with respect to the timely furnishing of prospectuses.
(i) On
such dates as reasonably requested by the Agent, the Company shall have conducted due diligence sessions, in form and substance reasonably
satisfactory to the Agent.
(j) All
filings with the Commission required by Rule 424 under the 1933 Act to have been filed by each Applicable Time or related Settlement Date
shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(k) The
Company shall have paid the required Commission filing fees relating to the Shares within the time period and in the manner required by
the 1933 Act and the 1933 Act Regulations (including Rules 456 and 457 thereunder).
(l) On
or prior to the date the Company instructs the Agent to make sales of Shares pursuant to a Sales Notice, the Company shall have submitted
a Listing of Additional Shares notification form to the Exchange with respect to such Shares and shall have received no objection thereto
from the Exchange, and satisfactory evidence of such actions shall have been provided to the Agent by such applicable time.
(m) FINRA
shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(n) Prior
to any Settlement Date, the Company shall have furnished to the Agent such further information, documents or certificates as the Agent
may reasonably request.
28
Section 7. Indemnification.
(a) The
Company will indemnify and hold harmless the Agent against any losses, claims, damages or liabilities, to which the Agent may become subject,
under the 1933 Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus,
the Prospectus Supplement or the Prospectus or any amendment or supplement thereto, any Issuer Free Writing Prospectus or any “issuer
information” filed or required to be filed pursuant to Rule 433(d) under the 1933 Act, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading,
and will reimburse the Agent for any legal or other expenses reasonably incurred by the Agent in connection with investigating or defending
any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, the Prospectus Supplement or the Prospectus,
or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in strict conformity with written
information furnished to the Company by the Agent expressly for use therein.
(b) The
Agent will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become
subject, under the 1933 Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the
Base Prospectus, the Prospectus Supplement or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus,
or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, the Prospectus Supplement
or the Prospectus, or any such amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in strict
conformity with written information furnished to the Company by the Agent expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim
as such expenses are incurred.
(c) Promptly
after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying
party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under such subsection except and then only to the extent such indemnifying party
is materially prejudiced thereby. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from
the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under this Section 7 for any legal expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of
any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise
or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and
(ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified
party.
29
(d) If
the indemnification provided for in this Section 7 is unavailable to hold harmless an indemnified party under subsection (a) or (b) above
in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand
and the Agent on the other from the offering of the Shares to which such loss, claim, damage or liability (or action in respect thereof)
relates. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company on the one hand and the Agent on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the one hand and the Agent on the other shall be deemed to
be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the
total commissions received by the Agent. The relative fault shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied
by the Company on the one hand or the Agent on the other and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and the Agent agree that it would not be just and equitable
if contribution pursuant to this subsection (d) were determined by pro rata allocation or by any other method of allocation which does
not take account of the equitable considerations referred to above in this subsection (d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (d)
shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this subsection (d), the Agent shall not be required to contribute
any amount in excess of the amount by which the total compensation received by the Agent with respect to sales of the Shares sold by them
to the public exceeds the amount of any damages which the Agent have otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(e) The
obligations of the Company under this Section 7 shall be in addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to the directors, officers, employees, attorneys and agents of the Agent and to each person, if any,
who controls the Agent within the meaning of the 1933 Act and each broker dealer affiliate of the Agent; and the obligations of the Agent
under this Section 7 shall be in addition to any liability which the Agent may otherwise have and shall extend, upon the same terms and
conditions, to each director, officer, employee, attorney and agent of the Company and to each person, if any, who controls the Company
within the meaning of the 1933 Act.
Section 8. Representations,
Warranties and Agreements to Survive Delivery. The respective indemnities, agreements, representations, warranties and other
statements of the Company and the Agent, as set forth in this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any investigation (or any statement as to the results thereof) made by
or on behalf of the Agent or any controlling person of the Agent, or the Company, or any officer or director or controlling person of
the Company, and shall survive delivery of and payment for the Shares.
Section 9. No
Advisory or Fiduciary Relationship. The Company acknowledges and agrees that (i) the Agent is acting solely in the capacity
of an arm’s length contractual counterparty to the Company with respect to the offering of Shares contemplated hereby (including
in connection with determining the terms of such offering) and (ii) the Agent has not assumed an advisory or fiduciary responsibility
in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether the Agent
has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly
set forth in this Agreement and (iii) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate.
The Company agrees that it will not claim that the Agent has rendered advisory services of any nature or respect, or owes a fiduciary
or similar duty to the Company, in connection with such transaction or the process leading thereto.
30
Section 10. Termination.
(a) The
Company shall have the right, by giving written notice as hereinafter specified, to terminate this Agreement in its sole discretion at
any time upon five (5) business days’ prior written notice. Any such termination shall be without liability of any party to any
other party, except that (i) with respect to any pending sale through the Agent for the Company, the obligations of the Company, including
in respect of compensation of the Agent, shall remain in full force and effect notwithstanding such termination; and (ii) the provisions
of Section 1, Section 5, Section 7, Section 8, Section 10(e), Section 14, Section 15, Section 16, Section 20 and Section 21 of this Agreement
shall remain in full force and effect notwithstanding such termination.
(b) The
Agent shall have the right, by giving written notice as hereinafter specified, to terminate this Agreement in its sole discretion at any
time upon ten (10) business days’ prior written notice. Any such termination shall be without liability of any party to any other
party except that the provisions of Section 1, Section 5, Section 7, Section 8, Section 10(e), Section 14, Section 15, Section 16, Section
20 and Section 21 of this Agreement shall remain in full force and effect notwithstanding such termination.
(c) Unless
earlier terminated pursuant to this Section 10, this Agreement shall automatically terminate upon the issuance and sale of all of the
Shares by the Agent on the terms and subject to the conditions set forth herein except any termination pursuant to this clause (c) shall
in all cases be deemed to provide that Section 1, Section 5, Section 7, Section 8, Section 10(e), Section 14, Section 15, Section 16,
Section 20 and Section 21 of this Agreement shall remain in full force and effect.
(d) This
Agreement shall remain in full force and effect until and unless terminated pursuant to Section 10(a), (b) or (c) above or otherwise by
mutual agreement of the parties; provided that any such termination by mutual agreement or pursuant to this clause (d) shall in
all cases be deemed to provide that Section 1, Section 5, Section 7, Section 8, Section 10(e), Section 14, Section 15, Section 16, Section
20 and Section 21 of this Agreement shall remain in full force and effect.
(e) Any
termination of this Agreement shall be effective on the date specified in such notice of termination; provided that such termination
shall not be effective until the close of business on the date of receipt of such notice by the Agent or the Company, as the case may
be. If such termination shall occur prior to the Settlement Date for any sale of Shares, such sale shall settle in accordance with the
provisions of Section 2(g) hereof.
Section 11. Notices.
All statements, requests, notices and agreements hereunder shall be in writing, and if to the Agent shall be delivered or sent by mail
or email to:
Titan Partners Securities LLC
4 World Trade Center, 49th Floor
New York, NY 10007
Attention: Adam Sands
E-mail: notices@titanpartnersgrp.com
with a copy (which shall not constitute notice) to:
McGuireWoods LLP
1251 Avenue of the Americas, 20th Floor
New York, NY 10020
Attention: Stephen Older and Carly Ginley
Email: solder@mcguirewoods.com and cginley@mcguirewoods.com
31
and if to the Company to:
Quantum Cyber N.V.
200 Connecticut Ave. Suite 400
Norwalk, CT 06854
Attention: David Lazar, CEO
Email: david@activistinvestingllc.com
With a copy (which shall not constitute notice) to:
Haynes and Boone, LLP
30 Rockefeller Plaza, 22nd Floor
New York, NY 10112
Attention: Rick A. Werner
Email: rick.werner@haynesboone.com
Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
Section 12. Parties.
This Agreement shall be binding upon, and inure solely to the benefit of, the Agent and the Company and, to the extent provided in Sections
7 and 8 hereof, the officers, directors, employees, attorneys and agents of the Company and the Agent and each person who controls the
Company or the Agent, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire
or have any right under or by virtue of this Agreement. No purchaser of Shares through the Agent shall be deemed a successor or assign
by reason merely of such purchase.
Section 13. Time
of the Essence. Time shall be of the essence of this Agreement. As used herein, the term “business day” shall mean
any day when the Commission’s office in Washington, D.C. is open for business.
Section 14. Amendments;
Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed,
in the case of an amendment, by the Company and the Agent. No waiver of any default with respect to any provision, condition or requirement
of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other
provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner
impair the exercise of any such right.
Section 15. Waiver
of Jury Trial. The Company and the Agent hereby irrevocably waive, to the fullest extent permitted by applicable law, any and
all right to jury trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated
hereby.
Section 16. Governing
Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE
TO ITS PRINCIPLES OF CONFLICTS OF LAW.
Section 17. Counterparts.
This Agreement may be executed by any one or more of the parties hereto and thereto in any number of counterparts, each of which shall
be deemed to be an original, but all such respective counterparts shall together constitute one and the same instrument. This Agreement
may be delivered by any party by electronic transmission.
Section 18. Severability.
The invalidity or unenforceability of any Section, paragraph or provision of this Agreement shall not affect the validity or enforceability
of any other Section, paragraph or provision hereof. If any Section, paragraph or provision of this Agreement is for any reason determined
to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as are necessary to
make it valid and enforceable.
32
Section 19. Recognition
of the U.S. Special Resolution Regimes.
(a) In
the event that the Agent becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from the Agent of this Agreement,
and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under
the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States
or a state of the United States.
(b) In
the event that the Agent or a BHC Act Affiliate of the Agent becomes subject to a proceeding under a U.S. Special Resolution Regime, Default
Rights under this Agreement that may be exercised against the Agent are permitted to be exercised to no greater extent than such Default
Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or
a state of the United States.
For purposes of this Section 19:
“BHC Act Affiliate”
has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Default Right”
has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as
applicable.
“U.S. Special Resolution
Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of
the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
Section 20. Consent to Jurisdiction;
Waiver of Immunity. Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated
hereby shall be instituted in (i) the federal courts of the United States of America located in the City and County of New York, Borough
of Manhattan or (ii) the courts of the State of New York located in the City and County of New York, Borough of Manhattan (collectively,
the “Specified Courts”), and each party irrevocably submits to the exclusive jurisdiction (except for proceedings instituted
in regard to the enforcement of a judgment of any such court, as to which such jurisdiction is non-exclusive) of such courts in any such
suit, action or proceeding. Service of any process, summons, notice or document by mail to such party’s address set forth in Section
11 shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and
unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably
and unconditionally waive and agree not to plead or claim in any such court that any such suit, action or other proceeding brought in
any such court has been brought in an inconvenient forum. To the extent that the Company has or hereafter may acquire any immunity (sovereign
or otherwise) from jurisdiction of any court of (i) the Netherlands, (ii) the United States or the State of New York, (iii) any jurisdiction
in which it owns or leases property or assets or from any legal process (whether through service of notice, attachment prior to judgment,
attachment in aid of execution, execution, set-off or otherwise) with respect to itself or its respective property and assets or this
Agreement, the Company hereby irrevocably waives such immunity in respect of its obligations under this Agreement to the fullest extent
permitted by applicable law.
Section 21. Judgment Currency
Indemnity. The Company agrees to indemnify the Agent, each employee, officer and director of the Agent and each person, if any, who
controls the Agent within the meaning of Section 15 of the 1933 Act and each affiliate of the Agent, against any loss incurred as a result
of any judgment or order being given or made for any amount due hereunder and such judgment or order being expressed and paid in a currency
(the “judgment currency”) other than U.S. dollars and as a result of any variation as between (i) the rate of exchange
at which the U.S. dollar amount is converted into the judgment currency for the purpose of such judgment or order, and (ii) the rate of
exchange at which such indemnified person is able to purchase U.S. dollars with the amount of the judgment currency actually received
by the indemnified person. The foregoing indemnity shall constitute a separate and independent obligation of the Company and shall continue
in full force and effect notwithstanding any such judgment or order as aforesaid. The term “rate of exchange” shall include
any premiums and costs of exchange payable in connection with the purchase of, or conversion into, the relevant currency.
If the foregoing is in accordance
with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement between the Agent and the Company in accordance with its terms.
33
Very truly yours,
QUANTUM CYBER N.V.
By:
/s/ David Lazar
Name:
David Lazar
Title:
Chief Executive Officer
Accepted as of the date hereof:
TITAN PARTNERS SECURITIES LLC
By:
/s/ Adam Sands
Name:
Adam Sands
Title:
President
EX-5.1 — OPINION OF CMS DERKS STAR BUSMANN N.V
EX-5.1
Filename: ea030821202ex5-1.htm · Sequence: 3
Exhibit
5.1
Quantum Cyber N.V.
Atrium
| Parnassusweg 737
200 Connecticut Ave., Suite 400,
NL-1077 DG Amsterdam
CT06854, Norwalk
Postbus 94700
United States of America
NL-1090 GS Amsterdam
Bank account (Stichting Derdengelden)
Iban: NL31 RABO 0103 3545 49
Swift/bic: RABONL2U
Subject:
Quantum Cyber N.V. / Legal Opinion
9 October 2026
Dear
Madam/Sir,
We
have acted as Dutch legal counsel to Quantum Cyber N.V. of Amsterdam, the Netherlands (the “Company”) in respect of
certain matters of Dutch law in connection with the registration statement on Form S-3 (File No. 333-296480) filed by the Company with
the U.S. Securities and Exchange Commission on 4 June 2026 under the U.S. Securities Act of 1933, as amended, and declared effective
on 15 June 2026 (the “Registration Statement”), the base prospectus included therein (the “Base Prospectus”)
and the prospectus supplement relating to the Registration Shares filed on or around the date hereof. (the “Prospectus Supplement”).
The
Prospectus Supplement covers the offering of ordinary shares in the capital of the Company to investors up to an offering price of $100,000,000
(the “Registration Shares”).
All
services are rendered under an agreement of instruction with CMS Derks Star Busmann N.V.,
with registered office in Amsterdam, the Netherlands. This agreement is subject to the General
Conditions of CMS Derks Star Busmann N.V., which have been filed with the registrar of the
District Court Amsterdam, the Netherlands, under no. 84/2020 and which contain a limitation
of liability. These terms have been published on the website cms.law and will be provided
upon request. CMS Derks Star Busmann N.V. is a company with limited liability under the laws
of the Netherlands and is registered in the Netherlands with the trade register under no.
30201194 and in Belgium with the RPR Brussels under no. 0877.478.727. The VAT number of CMS
Derks Star Busmann N.V. for the Netherlands is NL8140.16.479.B01 and for Belgium BE 0877.478.727.
CMS
Derks Star Busmann is a member of CMS, the organisation of European law firms. In certain
circumstances, CMS is used as a brand or business name of, or to refer to, some or all of
the member firms or their offices. Further information can be found at www.cms.law.
CMS
offices and associated offices: Aberdeen, Abu Dhabi, Algiers, Amsterdam, Antwerp, Barcelona, Beijing, Beirut, Belgrade, Bergen, Berlin,
Bogotá, Bratislava, Bristol, Brussels, Bucharest, Budapest, Casablanca, Cologne, Dubai, Duesseldorf, Edinburgh, Frankfurt,
Funchal, Geneva, Glasgow, Hamburg, Hong Kong, Istanbul, Johannesburg, Kyiv, Leipzig, Lima, Lisbon, Ljubljana, London, Luanda, Luxembourg,
Lyon, Madrid, Manchester, Mexico City, Milan, Mombasa, Monaco, Munich, Muscat, Nairobi, Oslo, Paris, Podgorica, Poznan, Prague, Reading,
Rio de Janeiro, Rome, Santiago de Chile, Sarajevo, Shanghai, Sheffield, Singapore, Skopje, Sofia, Stavanger, Strasbourg, Stuttgart,
Tirana, Vienna, Warsaw, Zagreb and Zurich.
For
the purpose of this legal opinion, we have examined and relied solely upon the following documents:
(a) an
electronically received copy of an extract relative to the Company, dated 9 October 2026
(the “Extract”) from the trade register (handelsregister) of the
Dutch Chamber of Commerce (Kamer van Koophandel) (the “Trade Register”).
(b) an
official copy (afschrift) of the notarial deed of incorporation (akte van oprichting)
of the Company, dated 8 March 2021 (the “Deed of Incorporation”);
(c) an
official copy of the notarial deed of conversion, dated 9 November 2021 (the “Deed
of Conversion”);
(d) an
official copy of the notarial deed of amendment of the articles of association of the Company,
dated 1 July 2026, (the “Deed of Amendment”), containing the articles
of association of the Company as of such date (the “Articles of Association”);
(e) a
written resolution of the board (het bestuur) of the Company, dated 9 October
2026, (the “Board Resolution”); and
(f) minutes
of the general meeting (algemene vergadering) of the Company, held on 29 June 2026
(the “Shareholders Resolution”).
We
do not express any opinion in respect of the Prospectus Supplement.
In
connection with such examination and for the purpose of the opinion expressed herein we have assumed:
(i) that
at the time of the issuances of the Registration Shares, the Company’s authorized capital
will be sufficient to allow for the issuances;
(ii) that
the Registration Shares will be offered, subscribed for, issued and accepted by the investors
in accordance with all applicable laws (including for the avoidance of doubt, Dutch law);
(iii) that
the Registration Shares will be validly paid up at the time of the issuances;
(iv) that
the Registration Shares will be issued in the form and manner prescribed by the articles
of association at the time of the issuances;
(v) that
the Company will duly sign a deed of issue to implement each issuance of Registration Shares;
(vi) the
genuineness of all signatures on all original documents of the persons purported to have
signed the same;
(vii) each
signature on each document is the original or electronic (as relevant) signature of the relevant
stated person;
(viii) the
conformity to their originals of all documents submitted or transmitted to us in the form
of photocopies, electronically or otherwise, and the authenticity and completeness of such
originals;
2
(ix) that
any and all authorisations and consents of, or other filings with or notifications to, any
public authority or other relevant body or person in or of any jurisdiction which may be
required (other than under Dutch law) in respect of the issuance of the Registration Shares
have been or will be duly obtained or made, as the case may be;
(x) that
the Articles of Association are in full force and effect as at the date hereof, it being
hereby confirmed that on the face of the Articles of Association it does not appear that
the Articles of Association are not in full force and effect as at the date hereof;
(xi) that
the Board Resolution, the Shareholders’ Resolution and the declarations and resolutions
reflected therein are in full force and effect as at the date hereof and will be in full
force and effect at the time of the issuance of the Registration Shares and that none of
these resolutions will be withdrawn or restated and that no resolutions have been or will
be adopted to amend the contents of these resolutions;
(xii) that
the Deed of Incorporation, the Deed of Conversion and the Deed of Amendment are valid notarial
deeds (notariële aktes), that the content thereof is correct and complete, it
being hereby confirmed that on the face of the Deed of Incorporation, the Deed of Conversion
and the Deed of Amendment it does not appear that these deeds are not valid notarial deeds;
(xiii) that
the Articles of Association are in full force and effect at the date hereof, it being hereby
confirmed that on the face of the Articles of Association and the Extract it does not appear
that the Articles of Association are not in full force and effect as at the date hereof;
(xiv) that
no petition has been presented to nor order made by a court for the bankruptcy (faillissement)
of the Company and that no resolution has been adopted concerning a statutory merger (juridische
fusie) or division (splitsing) involving the Company as disappearing entity, or
a voluntary liquidation (ontbinding) of the Company;
(xv) that,
at the date hereof, the information contained in the Extract truly and correctly reflects
the position of the Company as mentioned therein;
(xvi) that,
at the time of the issuances of the Registration Shares, the Company, and the investors are:
a) not
included on the consolidated list of persons, groups and entities subject to EU financial
sanctions;
b) not
subject to the restrictive measures deriving from Council Regulation (EU) 2022/262 and Council
Decision (CFSP) 2022/264, issued by the Council of the European Union on 23 February 2022,
in view of Russia’s actions destabilising the situation in Ukraine;
c) not
subject to the restrictive measures deriving from Council Regulation (EU) 2022/334 and Council
Decision (CFSP) 2022/335, issued by the Council of the European Union on 28 February 2022,
in view of Russia’s actions destabilising the situation in Ukraine;
d) not
subject to the restrictive measures deriving from Council Regulation (EU) 2022/428 and Council
Decision (CFSP) 2022/430, issued by the Council of the European Union on 15 March 2022, in
view of Russia’s actions destabilising the situation in Ukraine; and
e) not
subject to any other restrictive measures issued by the Council of the European Union, in
view of Russia’s actions destabilising the situation in Ukraine;
3
(xvii) that,
at the date hereof, the directors of the Company are not subject to a director’s disqualification
(civielrechtelijk bestuursverbod) under Dutch law, which assumption is supported by
the confirmations of the directors of the Company in the Board Resolution; and
(xviii) that
the Company has not been dissolved (ontbonden), merged (gefuseerd) involving
the Company as disappearing entity, demerged (gesplitst), converted (omgezet),
granted a suspension of payments (surséance verleend), subjected to emergency
regulations (noodregeling) as provided for in the Financial Supervision Act (Wet
op het Financieel Toezicht), declared bankrupt (failliet verklaard), subjected
to any other insolvency proceedings listed in Annex A of Regulation (EU) 2015/848 of the
European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast),
as amended by Regulation (EU) 2021/2260 of the European Parliament and of the Council of
15 December 2021 amending Regulation (EU) 2015/848 on insolvency proceedings to replace its
Annexes A and B, listed on the list referred to in article 2 (3) of Council Regulation (EC)
No 2580/2001 of 27 December 2001, listed in Annex I to Council Regulation (EC) No 881/2002
of 27 May 2002 or listed and marked with an asterisk in the Annex to Council Common Position
2001/931 of 27 December 2001 relating to measures to combat terrorism, as amended from time
to time, and no trustee (curator), administrator (bewindvoerder) or similar
officer has been appointed in respect of the Company or any of its respective assets.
We
express no opinion as to any law other than Dutch law in force at the date hereof as applied and interpreted according to present duly
published case law of the Dutch courts. In this opinion “the Netherlands” means the European part of the Kingdom of the Netherlands
and Dutch law means the law directly applicable in the Netherlands. No opinion is rendered with respect to any matters of fact, anti-trust
law, market abuse, equal treatment of shareholders, financial assistance, tax law, or the laws of the European Communities, to the extent
not or not fully implemented in Dutch law.
In
this legal opinion, Dutch legal concepts are expressed in English terms and not in their original Dutch terms. Where indicated in italics,
Dutch equivalents of these English terms have been given for the purpose of clarification. The Dutch concepts may not be identical to
the concepts described by the same English terms as they exist under the laws of other jurisdictions. Terms and expressions of law and
of legal concepts as used in this legal opinion have the meaning attributed to them under Dutch law and this legal opinion should be
read and understood accordingly.
This
legal opinion is strictly limited to the matters stated herein and may not be read as extending by implication to any matter not specifically
referred to. Nothing in this legal opinion should be taken as expressing an opinion in respect of the factual accuracy of any representations
or warranties, or other information, contained in any document, referred to herein or examined in connection with this legal opinion,
except as expressly stated otherwise. For the purpose hereof, we have assumed such accuracy.
Based
upon the foregoing (including, without limitation, the documents and the assumptions set out above) and subject to the qualifications
set out below and any facts, circumstances, events or documents not disclosed to us in the course of our examination referred to above,
we are, at the date hereof, of the opinion that:
4
When
issued, the Registration Shares will have been validly issued, fully paid and will be non-assessable.
The
opinion expressed above is subject to the following qualifications:
(A) The
opinion expressed above may be affected or limited by any applicable bankruptcy, insolvency,
fraudulent conveyance (actio pauliana), reorganization, suspension of payment and
other or similar laws now or hereafter in effect, relating to or affecting the enforcement
or protection of creditors’ rights.
(B) A
power of attorney (volmacht) or mandate (lastgeving) granted or issued by the
Company will terminate by force of law and without any notice being required upon bankruptcy
of the Company and will become ineffective upon a suspension of payments (surséance
van betaling) being granted to the Company.
(C) A
court applying the laws of the Netherlands may: (i) at the request of any party to an agreement
change the effect of an arrangement or dissolve it in whole or in part in the event of unforeseen
circumstances (onvoorziene omstandigheden) of such nature that do not, according the
standards of reasonableness and fairness, justify the other party to expect the agreement
to be maintained unchanged; (ii) limit any claim for damages or penalties on the basis that
such claim is deemed excessive by the court; and (iii) refuse to give effect to any provisions
for the payment of expenses in respect of the costs of enforcement (actual or attempted)
or unsuccessful litigation brought before such court or tribunal or where such court or tribunal
has itself made an order for costs.
(D) The
opinion expressed above may be limited or affected by:
(i) claims
based on tort (onrechtmatige daad);
(ii) in
relation to the issuance of the Registration Shares, including but not limited to an issuance
below market value, the rules of force majeure (niet toerekenbare tekortkoming), reasonableness
and fairness (redelijkheid en billijkheid), suspension (opschorting), dissolution
(ontbinding), unforeseen circumstances (onvoorziene omstandigheden) and vitiated
consent (i.e., duress (bedreiging), fraud (bedrog), abuse of circumstances
(misbruik van omstandigheden) and error (dwaling)) or a difference of intention
(wil) and declaration (verklaring).
(E) If
a party is controlled by or otherwise connected with a person, organization or country that
is currently the subject of sanctions by the United Nations, the European Community or the
Netherlands, implemented, effective or sanctioned in the Netherlands under the Sanctions
Act 1977 (Sanctiewet 1977), the Economic Offences Act (Wet op de economische delicten)
or the Financial Supervision Act (Wet op het Financieel Toezicht) or is otherwise
the target of any such sanctions, the obligations of the Company to that party may be unenforceable,
void or otherwise affected.
5
(F) The
term “non-assessable” has no equivalent legal term under Dutch law and for the
purpose of this opinion, “non-assessable” means that a holder of a Registration
Share will not by reason of merely being such a holder, be subject to assessment or calls
by the Company or its creditors for further payment on such Registration Share.
This
opinion is rendered to you for the sole purpose of the filing of this opinion as an exhibit to the Prospectus Supplement to be submitted
by the Company on or around the date hereof, to which filing we consent under the express condition that:
(i) we
do not admit that we are within the category of persons whose consent is required within
Section 7 of the Securities Act of 1933;
(ii) any
issues of interpretation or liability arising under this legal opinion will be governed exclusively
by the laws of the Netherlands and be brought exclusively before a Dutch court;
(i) this
legal opinion is subject to acceptance of the limitation of liability as mentioned on the
first page of this letter. Subject to its terms, our insurance policy provides for a maximum
insured amount of EUR 100,000,000;
(iii) we
do not assume any obligation to notify or to inform you of any developments subsequent to
the date hereof that might render its contents untrue or inaccurate in whole or in part at
such time; and
(iv) this
legal opinion is strictly limited to the matters set forth herein and no opinion may be inferred
or implied beyond our opinion expressly stated herein.
Yours faithfully,
/s/ CMS Derks Star Busmann N.V.
CMS Derks Star Busmann N.V.
6
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v3.26.3
Cover
Oct. 09, 2026
Cover [Abstract]
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Entity File Number
001-41010
Entity Registrant Name
Quantum Cyber N.V.
Entity Central Index Key
0001874252
Entity Tax Identification Number
00-0000000
Entity Incorporation, State or Country Code
P7
Entity Address, Address Line One
200 Connecticut Ave
Entity Address, Address Line Two
Suite 400
Entity Address, City or Town
Norwalk
Entity Address, State or Province
CT
Entity Address, Postal Zip Code
06854
City Area Code
561
Local Phone Number
562-4111
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Ordinary Shares, nominal value €0.01 per share
Trading Symbol
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Security Exchange Name
NASDAQ
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