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Amendment Number 1, dated October 25, 2021, to Sales Agreement, dated June 21, 2021, among iSun, Inc., B. Riley Securities, Inc., and EF Hutton, Division of Benchmark Investments, LLC

Contract Categories: Business Operations - Sales Agreements
EX-1.2 2 ny20000912x3_ex1-2.htm EXHIBIT 1.2

Exhibit 1.2


October 25, 2021
B. Riley Securities, Inc.
299 Park Avenue, 21st Floor
New York, NY 10171

Ladies and Gentlemen:

iSun, Inc. (the “Company”) and B. Riley Securities, Inc. (the “Agent”) are parties to that certain Sales Agreement dated June 21, 2021 (the “Original Agreement”). All capitalized terms not defined herein shall have the meanings ascribed to them in the Original Agreement. The parties, intending to be legally bound, hereby amend the Original Agreement as follows:

1.          EF Hutton, division of Benchmark Investments, LLC (the “QIU”), by signing this Amendment No. 1, is joined as a party to the Original Agreement.

2.          The following paragraph shall be inserted at the end of Section 1 of the Original Agreement:

The Company hereby confirms its engagement of EF Hutton, division of Benchmark Investments, LLC (the “QIU”) as, and the QIU hereby confirms its agreement with the Company to render services as, a “qualified independent underwriter,” within the meaning of Section (f)(12) of Rule 5121 of the Financial Industry Regulatory Authority, Inc. (“FINRA”) with respect to the offering and sale of the Placement Shares (as defined below).  The QIU hereby consents to the reference to it as set forth under the heading “Plan of Distribution (Conflicts of Interest)” in the ATM Prospectus and any amendment or supplement thereto.

3.          Section 9(a) of the Original Agreement shall be revised to read as follows:

Company Indemnification. The Company agrees to indemnify and hold harmless the Sales Agent, the directors, officers, members, partners, employees and agents of the Sales Agent each broker dealer affiliate of the Sales Agent, and each the Sales Agent Affiliate, if any, from and against any and all losses, claims, liabilities, expenses and damages (including, but not limited to, any and all reasonable investigative, legal and other expenses incurred in connection with, and any and all amounts paid in settlement (in accordance with Section 9(c)) of, any action, suit or proceeding between any of the indemnified parties and any indemnifying parties or between any indemnified party and any third party, or otherwise, or any claim asserted), as and when incurred, to which the Sales Agent, or any such person, may become subject under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, liabilities, expenses or damages arise out of or are based, directly or indirectly, on (a) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or the Prospectus or any amendment or supplement thereto or in any Issuer Free Writing Prospectus or in any application or other document executed by or on behalf of the Company or based on written information furnished by or on behalf of the Company filed in any jurisdiction in order to qualify the Common Stock under the securities laws thereof or filed with the Commission, (b) the omission or alleged omission to state in any such document a material fact required to be stated in it or necessary to make the statements in it not misleading, (c) any breach by any of the indemnifying parties of any of their respective representations, warranties and agreements contained in this Agreement or (d) the QIU’s acting as a “qualified independent underwriter” (within the meaning of Rule 5121 of the FINRA’s Securities Offering and Trading Standards and Practices Rules) in connection with the offering contemplated by this Agreement; provided, however, that this indemnity agreement shall not apply to the extent that such loss, claim, liability, expense or damage arises from the sale of the Placement Shares pursuant to this Agreement and is caused directly by an untrue statement or omission made in reliance upon and in strict conformity with written information relating to the Sales Agent and furnished to the Company by the Sales Agent expressly for inclusion in any document as described in clause (x) of this Section 9(a). This indemnity agreement will be in addition to any liability that the Company might otherwise have.

4.          Except as specifically set forth herein, all other provisions of the Original Agreement shall remain in full force and effect.

5.          Entire Agreement; Amendment; Severability. This Amendment No. 1 to the Original Agreement together with the Original Agreement (including all schedules and exhibits attached hereto and thereto and Placement Notices issued pursuant hereto and thereto) constitutes the entire agreement and supersedes all other prior and contemporaneous agreements and undertakings, both written and oral, among the parties hereto with regard to the subject matter hereof. All references in the Original Agreement to the “Agreement” shall mean the Original Agreement as amended by this Amendment No. 1; provided, however, that all references to “date of this Agreement” in the Original Agreement shall continue to refer to the date of the Original Agreement.

6.          Applicable Law; Consent to Jurisdiction. This amendment shall be governed by, and construed in accordance with, the internal laws of the State of New York without regard to the principles of conflicts of laws. Each party hereby irrevocably submits to the non-exclusive jurisdiction of the state and federal courts sitting in the City of New York, borough of Manhattan, for the adjudication of any dispute hereunder or in connection with any transaction contemplated hereby, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof (certified or registered mail, return receipt requested) to such party at the address in effect for notices to it under this amendment and agrees that such service shall constitute good and sufficient service of process and notice thereof.  Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law.

7.          Waiver of Jury Trial. The Company, the Agent and the QIU each hereby irrevocably waives any right it may have to a trial by jury in respect of any claim based upon or arising out of this amendment or any transaction contemplated hereby.

8.          Counterparts. This amendment may be executed in counterparts, each of which shall be deemed an original, but both of which together shall constitute one and the same instrument. Delivery of an executed amendment by one party to the other may be made by electronic or facsimile transmission.


[Remainder of Page Intentionally Blank]

If the foregoing correctly sets forth the understanding among the Company, the Agent and the QIU, please so indicate in the space provided below for that purpose, whereupon this letter shall constitute a binding amendment to the Original Agreement between the Company, the Agent and the QIU.
Very truly yours,
/s/ Jeffrey Peck
Jeffrey Peck
Chief Executive Officer
/s/ Patrice McNicoll
Patrice McNicoll
Co-Head of Investment Banking
/s/ Sam Fleischman
Sam Fleischman
Supervisory Principal

 [Signature page to Amendment No. 1 to Sales Agreement]