UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Form
6-K
REPORT
OF FOREIGN PRIVATE ISSUER PURSUANT TO RULE 13a-16 OR 15d-16
UNDER
THE
SECURITIES EXCHANGE ACT OF 1934
For
the month of October 2024
Commission
File Number: 333-226308
COLOR
STAR TECHNOLOGY CO., LTD.
(Translation
of registrant’s name into English)
80
Board Street, 5th Floor
New York, NY 10005
Tel: +1 (929) 317-2699
(Address of principal executive office)
Indicate
by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.
Form
20-F ☒ Form 40-F ☐
Entry
into a Material Agreement
On
September 27, 2024, Color Star Technology Co., Ltd. (the “Company”) and certain institutional investors (the “Purchasers”)
entered into certain securities purchase agreement (the “SPA”), pursuant to which the Company sold to the Purchasers
an initial tranche of senior secured convertible notes in the aggregate principal amount of approximately $7.6 million (the “Initial
Notes”), having an original issue discount of 8%, a maturity date twelve months from the date of issuance, bearing an interest
rate of 6% per annum, and convertible into Class A Ordinary Shares (the “Ordinary Shares”) of the Company, and accompanying
Series A Warrants to purchase up to an aggregate of 2,853,118 Ordinary Shares, with an exercise price of $1.60 per Ordinary Share (the
“Initial Warrants”). The offering of the Initial Notes and Initial Warrants resulted in gross proceeds to the Company
of approximately $7,000,000 before deducting placement agent fees and other estimated offering expenses (the “Offering”).
The
Initial Notes are convertible into the Company’s Ordinary Shares at the holder’s option, after 45 days from the date of issuance,
in whole or in part, until the Initial Note is fully converted, at the lower of (i) $1.60 (“Conversion Price”), or
(ii) a price equal to 90% of the lowest VWAP of the Ordinary Shares during the ten (10)-trading day period immediately preceding the
applicable conversion date (the “Alternate Conversion Price”). If the Company raises funds through subsequent financings,
the holder can require the Company to use up to 30% of the proceeds to redeem the Initial Notes at 105% of the principal amount, plus
accrued interest. The Conversion Price will also be adjusted proportionately if the Company issues dividends, splits, or combines its
Ordinary Shares. The Initial Note is secured by all assets of the Company and its subsidiaries under a certain security agreement and
subsidiary guarantee, and the Initial Note ranks senior to all other Company debts and liabilities.
The
Initial Warrants are exercisable after 45 days from the date of issuance (the “Initial Exercise Date”) at $1.60 per
share and expire 5 years from the Initial Exercise Date. Each Initial Warrant is subject to anti-dilution provisions to reflect stock
dividends and splits or other similar transactions, as well as any subsequent financings at an effective price per share less than the
exercise price of the Initial Warrants then in effect.
The
Company allocated approximately $1.33 million from the net proceeds of the Offering for the repayment of a certain convertible promissory
note issued to Streeterville Capital, LLC in the original principal amount of $1,100,000, bearing a simple interest rate of 8% per annum,
and a maturity date of August 13, 2025, pursuant to certain securities purchase agreement dated August 13, 2024, and currently intends
to use the remaining net proceeds from the Offering for general corporate and working capital purposes. The Offering closed on September
30, 2024.
The
Company also entered into a placement agency agreement dated September 27, 2024 (the “Placement Agency Agreement”)
with Maxim Group, LLC, as exclusive placement agent (the “Placement Agent”), pursuant to which the Placement Agent
agreed to act as the placement agent in connection with the Offering. The Company agreed to pay the Placement Agent an aggregate fee
equal to 6.5% of the gross proceeds raised in the Offering.
A
form of the Initial Notes, Initial Warrant, the SPA, and the Placement Agency Agreement are attached hereto as Exhibits 99.1, 99.2, 99.3
and 99.4, to this report on Form 6-K and such documents are incorporated herein by reference. The foregoing is only a brief description
of the material terms of the Initial Notes, the Initial Warrants, the SPA and the Placement Agency Agreement, and does not purport to
be a complete description of the rights and obligations of the parties thereunder and is qualified in its entirety by reference to such
exhibits.
On
September 27, 2024, the Company issued a press release announcing the pricing. A copy of the pricing press release is attached hereto
as Exhibit 99.5 and is incorporated herein by reference. A copy of the legal opinion issued by the Company’s Cayman Islands counsel
Conyers Dill & Pearman LLP is attached hereto as Exhibit 5.1.
The
sale and offering of the securities described above was effected as a takedown off the Company’s shelf registration statement on
Form F-3 (File No. 333- 281668) that was previously filed with the Securities and Exchange Commission (SEC) and declared effective on
August 28, 2024.
Submission
of Matters to a Vote of Security Holders.
The
Company held its annual meeting of shareholders (the “Annual General Meeting”) on September 29, 2024 at 10:00 p.m. Eastern
Standard Time (i.e., September 30, 2024 at 10:00 a.m., Beijing time and 9:00 pm Cayman Islands time) at Room 1801, North Part, Building
122, Nanhudongyuan (Room 1801, Building B, Botaiguoji), Chaoyang District, Beijing, PRC, 100102.
Holders
of 39,804,281 shares of the Registrant (consisting of 38,604,281 Class A Ordinary Shares and 1,200,000 Class B Ordinary Shares) were
present in person or by proxy at the annual meeting, representing approximately 72.78% of the total 54,684,024 outstanding shares (consisting
of 53,484,024 Class A Ordinary Shares and 1,200,000 Class B Ordinary Shares) and therefore constituting a quorum, present in person or
by proxy at the Annual General Meeting and entitled to vote at the Annual General Meeting as of the record date of August 28, 2024. The
final voting results for each matter submitted to a vote of shareholders at the Annual General Meeting are as follows:
1.
Reverse Share Split and Share Consolidation Proposal
The
shareholders approved as a special resolution, to authorize the Company’s board of directors (the “Board”) to effect
a reverse share split (the “Reverse Share Split” and share consolidation (the “Share Consolidation”) (the Reverse
Share Split and Share Consolidation, the “Reverse Share Split and Share Consolidation”), of the Company’s authorized
and issued share capital, at a ratio of up to one-for-two hundred fifty (1:250), but in any case at a ratio of not less than one-for-five
(1:5) (the “Approved Consolidation Ratio”), at a date to be determined by the Board, with the exact ratios to be set at a
whole number within this range, as determined by the Board in its sole discretion, such that the number of authorized and issued Class
A Ordinary Shares and Class B Ordinary Shares is decreased by the Approved Consolidation Ratio, with the par value per Class A Ordinary
Share and Class B Ordinary Share increased by the Approved Consolidation Ratio. Such Reverse Share Split and Share Consolidation to be
effected, at the specific Approved Consolidation Ratio (subject to the above maximum), as to be determined by the Board, and in order
to effect the Reverse Share Split and Share Consolidation and subject to adjustment pending the Board’s determination of the precise
Approved Consolidation Ratio of the Reverse Share Split and Share Consolidation, the authorised share capital of the Company shall be
altered from US$32,000,000 divided into (i) 700,000,000 Class A Ordinary Shares of a par value of US$0.04 each, and (ii) 100,000,000
Class B Ordinary Shares of a par value of US$0.04 each, to US$32,000,000 divided into (i) as low as 2,800,000 Class A Ordinary Shares
of a par value of US$10 each and 400,000 Class B Ordinary Shares of a par value of US$10 each (the “Reverse Share Split and Share
Consolidation Proposal”). No broker non-votes are counted.
For | |
Against | |
Abstain |
62,509,164 | |
93,307 | |
1,809 |
2.
Subdivision of Authorised Share Capital Proposal
The
shareholders approved as a special resolution that the Fifth Amended and Restated Memorandum of Association and Articles of Association
of the Company attached hereto as Appendix A (the “Amended M&A”) in substitution for the existing Fourth Amended and
Restated Memorandum of Association and Articles of Association of the Company (the “Articles Amendment Proposal”). No broker
non-votes are counted.
For | |
Against | |
Abstain |
60,581,509 | |
75,286 | |
1,195 |
3.
Articles Amendment Proposal
Subject
to approval by the shareholders of Proposal 1 (the Reverse Share Split and Share Consolidation) and Proposal 2 (the Subdivision of Authorized
Share Capital Proposal), the shareholders approved as a special resolution that the Sixth Amended and Restated Memorandum and Articles
of Association of the Company (the “Amended M&A”) in substitution for the existing Fifth Amended and Restated Memorandum
and Articles of Association of the Company (the “Articles Amendment Proposal”) to effect the Reverse Share Split and Share
Consolidation, and the Subdivision of Authorised Share Capital. No broker non-votes are counted.
For | |
Against | |
Abstain |
62,514,321 | |
86,924 | |
3,035 |
4.
2024 Equity Incentive Plan Proposal
The
shareholders approved the proposal as a special resolution to establish the 2024 Equity Incentive Plan, with an aggregate of Eight Million
(8,000,000) Class A Ordinary Shares to be available for awards. No broker non-votes are counted.
For | |
Against | |
Abstain |
62,521,785 | |
81,332 | |
1,164 |
5.
Election of Directors Proposal
The
shareholders approved the proposal as an ordinary resolution to elect and/or re-elect, as applicable, Wei Zhang, Louis Luo, Ahmad Khalfan
Ahmad Saeed Almansoori, Hung-Jen Kuo, Honglei Jiang, Ahmed Essa Mohammad Saleh and Muhammad Irfan (collectively, the “Director
Nominees”) to serve on the Board until their death, resignation, or removal (the “Election of Directors Proposal”).
No broker non-votes are counted.
For | |
Against | |
Abstain |
62,520,404 | |
81,324 | |
2,553 |
6.
Ratification of the Appointment of Auditors Proposal
The
shareholders approved the proposal as an ordinary resolution to ratify, confirm and approve the appointment of Audit Alliance LLP as
the Company’s independent registered public accounting firm for the fiscal year ending June 30, 2024 (the “Ratification of
Appointment of Auditors Proposal”). No broker non-votes are counted.
For | |
Against | |
Abstain |
62,549,620 | |
52,717 | |
1,944 |
7.
Filing Proposal
The
shareholders approved the proposal as an ordinary resolution to make all required filings with the Registrar of Companies of the Cayman
Islands in relation to the above resolutions and the Company’s Transfer Agent to make all relevant updates to the Company’s
register of members (the “Filing Proposal”). No broker non-votes are counted.
For | |
Against | |
Abstain |
62,527,935 | |
73,761 | |
2,585 |
8.
Adjournment Proposal
The
shareholders approved the proposal as an ordinary resolution to consider and take action upon such other matters as may properly come
before the Annual General Meeting or any adjournment or postponement thereof (the “Adjournment Proposal”). No broker non-votes
are counted.
For | |
Against | |
Abstain |
62,527,107 | |
74,584 | |
2,590 |
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, thereunto duly authorized.
Dated:
October 2, 2024
|
COLOR
STAR TECHNOLOGY CO., LTD. |
|
|
|
|
By: |
/s/ Louis
Luo |
|
Name: |
Louis
Luo |
|
Title:
|
Chief
Executive Officer |
5
Exhibit 5.1
|
CONYERS DILL & PEARMAN LLP
SIX, 2nd Floor, Cricket Square
PO Box 2681, Grand Cayman KY1-1111
Cayman Islands
T +1 345 945 3901
conyers.com
|
30 September 2024
711632.25059086
1-345-814-7786
Cora.Miller@conyers.com
Color Star Technology Co., Ltd.
800 3rd Ave, Suite 2800
New York, NY
USA 10022
Dear Sir / Madam
| Re: | Color Star Technology Co., Ltd. (the “Company”) |
We have
acted as special Cayman Islands legal counsel to the Company in connection with the Company’s filing of a shelf registration statement
on Form F-3 (File No. 333-281668) as amended (the “Registration Statement”) and prospectus
supplement annexed thereto (the “Prospectus Supplement”) (which terms do not include
any other document or agreement whether or not specifically referred to therein or attached as an exhibit or schedule thereto) to be filed
by the Company with the United States Securities and Exchange Commission (the “Commission”)
relating to the registration under the US Securities Act of 1933 (as amended) (the “Securities Act”)
of a prospectus filed with and declared effective by the Commission on 28 August 2024 (the “Prospectus”)
relating to the offering of US$7,608,696 in the principal amount of senior secured convertible notes (the “Initial Notes”)
and Series A Warrants (the “Initial Warrants”) to purchase up to 2,853,118 Class
A ordinary shares of the Company, par value US$0.04 each (the “Ordinary Shares”)
and the sale of up to an additional US$26,000,000 in the aggregate principal amount of the Company’s Senior Secured Convertible
Notes (the “Additional Notes” and collectively, with the Initial Notes, the “Notes”)
and accompanying Ordinary Share purchase warrants (the “Additional Warrants’”,
and together with the Initial Warrants, the “Warrants” and the Ordinary Shares underlying
the Warrants, the “Warrant Shares”), substantially on the same terms as the Initial
Notes and Initial Warrants, (the Notes, Warrants, Warrant Shares and Ordinary Shares are collectively referred to as the “Securities”),
subject to and in accordance with the terms and conditions of the SPA, Warrant Agreements, Senior Secured Convertible Notes and Placement
Agency Agreement (as each are defined below).
For the purposes of giving this opinion, we have
examined and relied upon a copy of the following documents:
| 1.1. | the Registration Statement; |
| 1.1. | the securities purchase agreement between the Company and each of the purchasers set out thereto dated
27 September 2024 (the “SPA”); |
| 1.2. | the series A ordinary share purchase warrant agreements between the Company and each of the purchasers
set out thereto dated 30 September 2024 (the “Warrant Agreements”); |
| 1.3. | the registered senior secured convertible notes due 30 September 2025 granted by the Company in favour
of each holder set out thereto dated 30 September 2024 (the “Senior Secured Convertible Notes”); |
| 1.4. | a security agreement between the Company, the Guarantors (as defined therein), the holders of the Notes
(as defined therein) and the Secured Parties (as defined therein) dated 27 September 2024; and |
| 1.5. | a placement agency agreement between the Company and Maxim Group LLC dated 27 September 2024 (the “Placement
Agency Agreement”). |
The documents listed in items
1.1 through 1.5 above are herein sometimes collectively referred to as the “Transaction Documents” and the documents
listed in items1.1 to 1.5 above are herein sometimes collectively referred to as the “Securities Documents” (which terms
do not include any other instrument or agreement whether or not specifically referred to therein or attached as an exhibit or schedule
thereto).
We have also reviewed:
| 1.6. | a copy of the Certificate of Incorporation of the Company dated 28 June 2018, the Certificate of Incorporation
on Change of Name of the Company dated 12 July 2019, the Certificate of Incorporation on Change of Name of the Company dated 1 May 2020,
the Fifth Amended and Restated Memorandum and Articles of Association of the Company approved by special resolution passed on 28 March
2023, each certified by the Secretary of the Company on 30 September 2024 (collectively, the “Constitutional Documents”); |
| 1.7. | a copy of unanimous written resolution of the directors of the Company dated 26 September 2024 (the “Resolutions”); |
| 1.8. | a copy of a Certificate of Good Standing (the “Good Standing Certificate”) issued by
the Registrar of Companies in relation to the Company on 30 September 2024 (the “Certificate Date”); |
| 1.9. | a copy of a certificate of incumbency of the Company issued by Conyers Trust Company (Cayman) Limited
dated 30 September 2024 (the “Incumbency Certificate” and together with the Constitutional Documents, the Good Standing
Certificate, Officer’s Certificate and the Resolutions, the “Corporate Documents”); |
| 1.10. | the results of our electronic searches against the Company at the Registrar of Companies conducted on
30 September 2024 and the electronic Register of Writs and other Originating Process of the Grand Court of the Cayman Islands conducted
at 10:14 a.m. on 30 September 2024; |
| 1.11. | a certificate issued by an officer of the Company dated 30 September 2024 (the “Officer’s
Certificate”); and |
| 1.12. | such other documents and made such enquiries as to questions of law as we have deemed necessary in order
to render the opinion set forth below. |
We have assumed:
| 2.1. | the genuineness and authenticity of all signatures and the conformity to the originals of all copies (whether
or not certified) examined by us and the authenticity and completeness of the originals from which such copies were taken; |
| 2.2. | that where a document has been examined by us in draft form, it will be or has been executed in the form
of that draft, and where a number of drafts of a document have been examined by us all changes thereto have been marked or otherwise drawn
to our attention; |
| 2.3. | the capacity, power and authority of each of the parties to the Securities Documents, other than the Company,
to enter into and perform its respective obligations under the Securities Documents; |
| 2.4. | the due execution and delivery of the Securities Documents by each of the parties thereto, other than
the Company, and the physical delivery thereof by with an intention to be bound thereby; |
| 2.5. | the accuracy and completeness of all factual representations made in the Resolutions and Transaction Documents
and other documents reviewed by us; |
| 2.6. | that the Resolutions were passed at one or more duly convened, constituted and quorate meetings or by
unanimous written resolutions, remain in full force and effect and have not been rescinded or amended; |
| 2.7. | that there is no provision of the law of any jurisdiction, other than the Cayman Islands, which would
have any implication in relation to the opinions expressed herein; |
| 2.8. | the validity and binding effect under the laws of the State of New York, USA (the “Foreign Laws”)
of the Transaction Documents in accordance with their respective terms; |
| 2.9. | the validity and binding effect under the Foreign Laws of the submission by the Company pursuant to the
Transaction Documents to the exclusive jurisdiction of the state and federal courts of the United States of America located in the City
of New York, Borough of Manhattan (the “Foreign Courts”); |
| 2.10. | that the Company will issue the Securities in furtherance of its objects as set out in its Constitutional
Documents; |
| 2.11. | that the Constitutional Documents will not be amended in any manner that would affect the opinions set
forth herein; |
| 2.12. | that, upon the issue of any Securities to be sold by the Company, the Company will receive consideration
for the full issue price thereof which shall not be less than the par value thereof; |
| 2.13. | no invitation has been or will be made by or on behalf of the Company to the public in the Cayman Islands
to subscribe for any Securities of the Company; |
| 2.14. | the Offering and the transactions contemplated under the Transaction Documents complies with the requirements
of the applicable rules of the Nasdaq Stock Market; |
| 2.15. | that on the date of entering into the Securities Documents, the Company is and after entering into the
Securities Documents will be able to pay debts; |
| 2.16. | the Company has not taken any action to appoint a restructuring officer; |
| 2.17. | the validity and binding effect under the laws of the United States of America of the Registration Statement,
Prospectus and Prospectus Supplement and that the Registration Statement, Prospectus and Prospectus Supplement will or have been duly
filed with and declared effective by the Commission prior to, or concurrent with, the sale of the Securities; |
| 2.18. | the Company will have sufficient authorized capital to effect the issue of each of the Securities at the
time of issuance pursuant to the Transaction Documents, whether as a principal issue or on the conversion, exchange, exercise of a Note
and/or Warrant; and |
| 2.19. | save for the Corporate Documents and the statutory registers of the Company, there are no resolutions,
agreements, documents or arrangements which materially affect, amend or vary the transactions contemplated by the Registration Statement. |
| 3.1. | We express no opinion with respect to the issuance of Ordinary Shares pursuant to any provision of the
Transaction Documents that purports to obligate the Company to issue Ordinary Shares following the commencement of a winding up or liquidation
of the Company. |
| 3.2. | Under Cayman Islands law, the register of members (shareholders) is prima facie evidence of title
to shares and this register would not record a third party interest in such shares. However, there are certain limited circumstances where
an application may be made to a Cayman Islands court for a determination on whether the register of members reflects the correct legal
position. Further, the Cayman Islands court has the power to order that the register of members maintained by a company should be rectified
where it considers that the register of members does not reflect the correct legal position. As far as we are aware, such applications
are rarely made in the Cayman Islands and there are no circumstances or matters of fact known to us on the date of this opinion letter
which would properly form the basis for an application for an order for rectification of the register of members of the Company, but if
such an application were made in respect of the Shares, then the validity of such shares may be subject to re-examination by a Cayman
Islands court. |
| 3.3. | We have made no investigation of and express no opinion in relation to the laws of any jurisdiction other
than the Cayman Islands. This opinion is to be governed by and construed in accordance with the laws of the Cayman Islands and is limited
to and is given on the basis of the current law and practice in the Cayman Islands. |
| 3.4. | This opinion is issued solely for your benefit and use in connection with the matter described herein
and is not to be relied upon by any other person, firm or entity or in respect of any other matter. |
On the basis of and subject to the foregoing,
we are of the opinion that:
| 4.1. | The Company is duly incorporated and existing under the laws of the Cayman Islands and, based on the Certificate
of Good Standing, is in good standing as at the Certificate Date. Pursuant to the Companies Act (as revised) (the “Act”),
a company is deemed to be in good standing if all fees and penalties under the Act have been paid and the Registrar of Companies has no
knowledge that the company is in default under the Act. |
| 4.2. | When issued and paid for in accordance with the Transaction Documents and recorded in the register of
members of the Company, the Ordinary Shares underlying the Notes and the Warrants will be validly issued, fully-paid and non-assessable
(which term when used herein means that no further sums are required to be paid by the holders thereof in connection with the issue of
such shares). |
| 4.3. | The Warrants have been duly authorized and when issued and delivered by the Company pursuant to the Securities
Documents against payment of the consideration set forth in the Securities Documents, such Warrants will be validly issued and will constitute
valid and binding obligations of the Company in accordance with the terms thereof. |
We hereby consent to the filing
of this opinion as exhibit 5.1 to the Registration Statement and further consent to all references to us in the Registration Statement
and any amendments thereto. In giving this consent, we do not consider that we are “experts” within the meaning of such term
as used in the Securities Act, or the Rules and Regulations of the Commission promulgated thereunder, with respect to any part of the
Registration Statement, including this opinion as an exhibit or otherwise.
Yours faithfully,
/s/ Conyers Dill & Pearman LLP
Conyers Dill & Pearman LLP
conyers.com | 5
Exhibit
99.1
Original
Issue Date: [____], 2024
Original
Principal Amount: US$[______]
Purchase
Price: US$[_________]
FORM
OF REGISTERED
SENIOR
SECURED CONVERTIBLE NOTE
DUE [_____], 2025
THIS
SENIOR SECURED CONVERTIBLE NOTE is one of a series of duly authorized and validly issued 8% Original Issue Discount Senior Secured Convertible
Notes of Color Star Technology Co., Ltd., a Cayman Islands exempted company (the “Company”), having its principal
place of business at 80 Broad Street, 5th Floor, New York, NY 10005, designated as its Senior Secured Convertible Note due
[_____], 2025 (this note, the “Note” and, collectively with the other notes of such series, the “Notes”).
FOR
VALUE RECEIVED, the Company promises to pay to [_________] or its registered assigns (the “Holder”), or shall have
paid pursuant to the terms hereunder, the principal sum of US$[_______] on [_____], 20251 (the “Maturity Date”)
or such earlier date as this Note is required or permitted to be repaid as provided hereunder, and to pay interest to the Holder on the
aggregate unconverted and then outstanding principal amount of this Note in accordance with the provisions hereof. This Note is subject
to the following additional provisions:
Section
1. Definitions. For the purposes hereof, in addition to the terms defined elsewhere in this Note, (a) capitalized terms not
otherwise defined herein shall have the meanings set forth in the Purchase Agreement and (b) the following terms shall have the following
meanings:
“Alternate
Consideration” shall have the meaning set forth in Section 5(e).
“Alternate
Conversion Price” shall have the meaning set forth in Section 4(b).
“Bankruptcy
Event” means any of the following events: (a) the Company or any significant Subsidiary (as such term is defined in Rule 1-02(w)
of Regulation S-X) thereof commences a case or other proceeding under any bankruptcy, reorganization, arrangement, adjustment of debt,
relief of debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction relating to the Company or any significant
Subsidiary thereof, (b) there is commenced against the Company, or any significant Subsidiary thereof any such case or proceeding that
is not dismissed within sixty (60) days after commencement, (c) the Company or any significant Subsidiary thereof is adjudicated insolvent
or bankrupt or any order of relief or other order approving any such case or proceeding is entered, (d) the Company or any significant
Subsidiary thereof suffers any appointment of any custodian or the like for it or any substantial part of its property that is not discharged
or stayed within sixty (60) calendar days after such appointment, (e) the Company or any significant Subsidiary thereof makes a general
assignment for the benefit of creditors, (f) the Company, or any significant Subsidiary thereof calls a meeting of its creditors with
a view to arranging a composition, adjustment or restructuring of its debts, (g) the Company or any significant Subsidiary thereof admits
in writing that it is generally unable to pay its debts as they become due, (h) the Company or any significant Subsidiary thereof, by
any act or failure to act, expressly indicates its consent to, approval of or acquiescence in any of the foregoing or takes any corporate
or other action for the purpose of effecting any of the foregoing.
| 1 | NTD:
1 year anniversary of issuance |
“Beneficial
Ownership Limitation” shall have the meaning set forth in Section 4(d).
“Business
Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized or required
by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee” or any
other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority so
long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York are generally
are open for use by customers on such day.
“Buy-In”
shall have the meaning set forth in Section 4(c)(v).
“Change
of Control Redemption Notice Date” shall have the meaning set forth in Section 6(b).
“Change
of Control Transaction” means the occurrence after the date hereof of any of (a) an acquisition after the date hereof by an
individual or legal entity or “group” (as described in Rule 13d-5(b)(1) promulgated under the Exchange Act) of effective
control (whether through legal or beneficial ownership of capital stock of the Company, by contract or otherwise) of in excess of 50%
of the voting securities of the Company (other than by means of conversion or exercise of the Notes and the Securities issued together
with the Notes), (b) the Company merges into or consolidates with any other Person, or any Person merges into or consolidates with the
Company and, after giving effect to such transaction, the shareholders of the Company immediately prior to such transaction own less
than 50% of the aggregate voting power of the Company or the successor entity of such transaction, (c) the Company (and all of its Subsidiaries,
taken as a whole) sells or transfers all or substantially all of its assets to another Person and the shareholders of the Company immediately
prior to such transaction own less than 50% of the aggregate voting power of the acquiring entity immediately after the transaction,
(d) a replacement at one time or within a three year period of more than one-half of the members of the Board of Directors which is not
approved by a majority of those individuals who are members of the Board of Directors on the Original Issue Date (or by those individuals
who are serving as members of the Board of Directors on any date whose nomination to the Board of Directors was approved by a majority
of the members of the Board of Directors who are members on the date hereof), or (e) the execution by the Company of an agreement to
which the Company is a party or by which it is bound, providing for any of the events set forth in clauses (a) through (d) above.
“Conversion”
shall have the meaning ascribed to such term in Section 4.
“Conversion
Date” shall have the meaning set forth in Section 4(a).
“Conversion
Price” shall have the meaning set forth in Section 4(b).
“Conversion
Shares” means, collectively, the Ordinary Shares issuable upon conversion of this Note, including interest payable in kind
thereon, in accordance with the terms hereof.
“Note
Register” shall have the meaning set forth in Section 2(c).
“Event
of Default” shall have the meaning set forth in Section 8(a).
“Exempt
Issuance” shall have the meaning set forth in the Purchase Agreement.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Fixed
Conversion Price” shall have the meaning set forth in Section 4(b).
“Fundamental
Transaction” shall have the meaning set forth in Section 5(e).
“Late
Fees” shall have the meaning set forth in Section 2(d).
“Mandatory
Default Amount” means the sum of (a) the greater of (i) the outstanding principal amount of this Note, plus all accrued and
unpaid interest hereon, divided by the lesser of (i) the Conversion Price, or (ii) 85% of the average of the three lowest VWAPs during
the ten (10) consecutive Trading Days ending on the Trading Day that is immediately prior to the applicable date the Mandatory Default
Amount is either (A) demanded (if demand or notice is required to create an Event of Default) or otherwise due or (B) paid in full, whichever
has a lower Conversion Price, multiplied by the highest closing price for the Ordinary Shares on the Principal Market during the period
beginning on the date of first occurrence of the Event of Default and ending on the date the Mandatory Default Amount is paid in full,
or (ii) 130% of the sum of the outstanding principal amount of this Note, plus accrued and unpaid interest hereon, and (b) all other
amounts, costs, expenses and liquidated damages due in respect of this Note.
“Mandatory
Redemption” means the redemption of this Note pursuant to the terms of Section 6 hereof.
“Mandatory
Redemption Amount” shall have the meaning set forth in Section 6(a).
“Mandatory
Redemption Notice” shall have the meaning set forth in Section 6(a).
“Mandatory
Redemption Notice Date” shall have the meaning set forth in Section 6(a).
“New
York Courts” shall have the meaning set forth in Section 9(d).
“Notice
of Conversion” shall have the meaning set forth in Section 4(a).
“Ordinary
Shares” means the ordinary shares of the Company, par value $0.04 per share.
“Original
Issue Date” means the date of the first issuance of the Notes, regardless of any transfers of any Note and regardless of the
number of instruments which may be issued to evidence such Notes.
“Pre-Notice”
shall have the meaning set forth in Section 6(a).
“Principal
Market” means The Nasdaq Capital Market.
“Purchase
Agreement” means the Securities Purchase Agreement, dated as of September 27, 2024, by and among the Company and the original
Holders, as amended, modified or supplemented from time to time in accordance with its terms.
“Registration
Statement” means a registration statement meeting the requirements set forth in the Purchase Agreement and covering the resale
of the Conversion Shares by each Holder.
“Required
Holders” means holders of more than 50% of the principal amount of the Notes then outstanding.
“Required
Minimum” shall have the meaning set forth in Section 4(c)(vi).
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Share
Delivery Date” shall have the meaning set forth in Section 4(c)(ii).
“Successor
Entity” shall have the meaning set forth in Section 5(e).
“Trading
Day” means a day on which the principal Trading Market is open for trading.
“Trading
Market” means any of the following markets or exchanges on which the Ordinary Shares will, in accordance with the terms hereof,
be listed or quoted for trading on the date in question: the NYSE American; the Nasdaq Capital Market; the Nasdaq Global Market; the
Nasdaq Global Select Market; the New York Stock Exchange; OTC Markets; the OTC Bulletin Board or the OTC Markets Group Inc. (or any successors
to any of the foregoing).
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Ordinary Shares are then listed
or quoted on a Trading Market, the daily volume weighted average price of the Ordinary Shares for such date (or the nearest preceding
date) on the Trading Market on which the Ordinary Shares are then listed or quoted as reported by Bloomberg L.P. (based on a Trading
Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the
volume weighted average price of the Ordinary Shares for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c)
if the Ordinary Shares are not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Ordinary Shares are then reported
on The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price
per share of the Ordinary Shares so reported, or (d) in all other cases, the fair market value of an Ordinary Share as determined
by an independent appraiser selected in good faith by the Required Holders and reasonably acceptable to the Company, the fees and expenses
of which shall be paid by the Company.
Section
2. Interest.
a) Payment
of Interest in Kind. The Company shall pay interest to the Holder on the aggregate unconverted and then outstanding principal amount
of this Note at the rate of six percent (6.0%) per annum, payable on each Conversion Date (as to the principal amount then being converted),
and on the Maturity Date (each such date, an “Interest Payment Date”) (if any Interest Payment Date is not a Business
Day, then the applicable payment shall be due on the next succeeding Business Day), in duly authorized, validly issued, fully paid and
non-assessable Ordinary Shares at the Conversion Rate at which the principal is then converted (such shares, for the avoidance of doubt,
shall be considered “Conversion Shares” for all purposes herein and shall be delivered with the Conversion Shares issuable
upon conversion of any principal amounts hereunder in the same form and in the same manner as such principal Conversion Shares as described
herein); provided, however, if there is not an effective Registration Statement available for the issuance of such Ordinary Shares, payment
shall be made in cash; provided, further, that at any time during which there is an Event of Default, the Company shall pay interest
to the Holder on the aggregate unconverted and then outstanding principal amount of this Note at the rate of ten percent (10.0%) per
annum (the “Default Rate”). In the event that such Event of Default is subsequently cured (and no other Event of Default
then exists, including, without limitation, for the Company’s failure to pay such Interest at the Default Rate), the adjustment
referred to in the preceding sentence shall cease to be effective as of the calendar day immediately following the date of such cure;
provided that the interest as calculated and unpaid at such rate during the continuance of such Event of Default shall continue to apply
to the extent relating to the days after the occurrence of such Event of Default through and including the date of such cure of such
Event of Default. For the avoidance of doubt, any time that the Company delivers Conversion Shares for the payment of interest hereunder,
the Company shall have filed or shall file a prospectus supplement pursuant to Rule 424 for the issuance of such Conversion Shares.
b) Interest
Calculations. Interest shall be calculated on the basis of a 360-day year, consisting of twelve 30 calendar day periods, and shall
accrue daily commencing on the Original Issue Date until payment in full of the outstanding principal, together with all accrued and
unpaid interest, liquidated damages and other amounts which may become due hereunder, has been made. Interest shall cease to accrue with
respect to any principal amount converted, provided that, the Company actually delivers the Conversion Shares within the time period
required by Section 4(c)(ii) herein. Interest hereunder will be paid to the Person in whose name this Note is registered on the records
of the Company regarding registration and transfers of this Note (the “Note Register”).
c) Late
Fee. All overdue accrued and unpaid interest to be paid hereunder shall entail a late fee at an interest rate equal to the lesser
of ten percent (10.0%) per annum or the maximum rate permitted by applicable law (the “Late Fees”) which shall accrue
daily from the date such interest is due hereunder through and including the date of actual payment in full.
d) Prepayment.
Except as otherwise set forth in this Note, the Company may not prepay any portion of the principal amount of this Note without the prior
written consent of the Holder.
Section
3. Registration of Transfers and Exchanges.
a) Different
Denominations. This Note is exchangeable for an equal aggregate principal amount of Notes of different authorized denominations,
as requested by the Holder surrendering the same. No service charge will be payable for such registration of transfer or exchange.
b) Investment
Representations. This Note has been issued subject to certain investment representations of the original Holder set forth in the
Purchase Agreement and may be transferred or exchanged only in compliance with the Purchase Agreement and applicable federal and state
securities laws and regulations.
c) Reliance
on Note Register. Prior to due presentment for transfer to the Company of this Note, the Company and any agent of the Company may
treat the Person in whose name this Note is duly registered on the Note Register as the owner hereof for the purpose of receiving payment
as herein provided and for all other purposes, whether or not this Note is overdue, and neither the Company nor any such agent shall
be affected by notice to the contrary.
Section
4. Conversion.
a) Voluntary
Conversion. After forty-five (45) days following the First Closing Date until this Note is no longer outstanding, this Note (along
with all interest accrued thereon) shall be convertible, in whole or in part, into Conversion Shares, at the option of the Holder, at
any time and from time to time (subject to the conversion limitations set forth in Section 4(d) hereof); provided, however,
if the closing price of the Ordinary Shares shall be equal to or greater than US$2.25 for any Trading Day following the First Closing
Date, then the Note shall become immediately convertible. The Holder shall effect conversions by delivering to the Company a Notice of
Conversion, the form of which is attached hereto as Annex A (each, a “Notice of Conversion”), specifying
therein the principal amount of this Note and interest to be converted and the date on which such conversion shall be effected (such
date, the “Conversion Date”). If no Conversion Date is specified in a Notice of Conversion, the Conversion Date shall
be the date that such Notice of Conversion is deemed delivered hereunder. No ink-original Notice of Conversion shall be required, nor
shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Conversion form be required. To effect conversions
hereunder, the Holder shall not be required to physically surrender this Note to the Company unless the entire principal amount of this
Note, plus all accrued and unpaid interest thereon, has been so converted, in which case the Holder shall surrender this Note as promptly
as is reasonably practicable after such conversion without delaying the Company’s obligation to deliver the Conversion Shares on
the Share Delivery Date. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Note and accrued
interest in an amount equal to the applicable conversion. The Holder and the Company shall maintain records showing the principal amount(s)
converted and the date of such conversion(s). The Company may deliver an objection to any Notice of Conversion within one (1) Business
Day of delivery of such Notice of Conversion. In the event of any dispute or discrepancy, the records of the Holder shall be controlling
and determinative in the absence of manifest error. The Holder, and any assignee by acceptance of this Note, acknowledge and
agree that, by reason of the provisions of this paragraph, following conversion of a portion of this Note, the unpaid and unconverted
principal amount of this Note may be less than the amount stated on the face hereof.
b) Conversion
Price. The Holder may, at its option, effect conversions of this Note at the lower of (i) US$[____]2 (the “Fixed
Conversion Price”) or (ii) a price equal to 90% of the lowest VWAP of the Ordinary Shares during the ten (10)-Trading Day period
immediately preceding the applicable Conversion Date, in each case subject to adjustment as provided herein (the “Alternate
Conversion Price”, and together with the Fixed Conversion Price, the “Conversion Price”).
c) Mechanics
of Conversion.
i. Conversion
Shares Issuable Upon Conversion of Principal Amount. The number of Conversion Shares issuable upon a conversion hereunder shall be
determined by the quotient obtained by dividing (x) the outstanding principal amount of this Note to be converted (along with interest
accrued thereon in accordance with Section 2 herein) by (y) the Conversion Price.
ii. Delivery
of Conversion Shares Upon Conversion. Not later than the earlier of (i) one (1) Trading Day and (ii) the number of Trading Days comprising
the Standard Settlement Period (as defined below) after each Conversion Date (the “Share Delivery Date”), the Company
shall deliver, or cause its transfer agent to deliver, to the Holder the Conversion Shares which shall be free of restrictive legends
and trading restrictions (other than those which may then be required by the Purchase Agreement) representing the number of Conversion
Shares being acquired upon the conversion of this Note including accrued and unpaid interest. On the Share Delivery Date, the Company
or its transfer agent shall deliver any Conversion Shares required to be delivered by the Company under this Section 4(c) electronically
through the Depository Trust Company or another established clearing corporation performing similar functions. As used herein, “Standard
Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary
Trading Market with respect to the Ordinary Shares as in effect on the date of delivery of the Notice of Conversion.
| 2 | 120%
of the VWAP of the Ordinary Shares on the Trading Day (i) on the date of the Purchase Agreement with respect to the First Closing, and
(ii) on the Trading Day immediately preceding the applicable closing with respect to any subsequent Closing. |
iii. Failure
to Deliver Conversion Shares. If, in the case of any Notice of Conversion, such Conversion Shares are not delivered to or as directed
by the applicable Holder by the Share Delivery Date, the Holder shall be entitled to elect by written notice to the Company at any time
on or before its receipt of such Conversion Shares, to rescind such Conversion, in which event the Company shall promptly return to the
Holder any original Note delivered to the Company and the Holder shall promptly return to the Company the Conversion Shares issued to
such Holder pursuant to the rescinded Notice of Conversion.
iv. Obligation
Absolute; Partial Liquidated Damages. The Company’s obligations to issue and deliver the Conversion Shares upon conversion
of this Note in accordance with the terms hereof are absolute and unconditional, irrespective of any action or inaction by the Holder
to enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any judgment against any Person or any
action to enforce the same, or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged breach by the
Holder or any other Person of any obligation to the Company or any violation or alleged violation of law by the Holder or any other Person,
and irrespective of any other circumstance which might otherwise limit such obligation of the Company to the Holder in connection with
the issuance of such Conversion Shares; provided, however, that such delivery shall not operate as a waiver by
the Company of any such action the Company may have against the Holder. In the event the Holder of this Note shall elect to convert any
or all of the outstanding principal amount hereof, the Company may not refuse conversion based on any claim that the Holder or anyone
associated or affiliated with the Holder has been engaged in any violation of law, agreement or for any other reason, unless an injunction
from a court, on notice to Holder, restraining and or enjoining conversion of all or part of this Note shall have been sought and obtained,
and the Company posts a surety bond for the benefit of the Holder in the amount of 150% of the outstanding principal amount of this Note,
which is subject to the injunction, which bond shall remain in effect until the completion of arbitration/litigation of the underlying
dispute and the proceeds of which shall be payable to the Holder to the extent it obtains judgment. In the absence of such injunction,
the Company shall issue Conversion Shares or, if applicable, cash, upon a properly noticed conversion. If the Company fails for any reason
to deliver to the Holder such Conversion Shares (for the avoidance of doubt, including the Conversion Shares issuable as payment for
accrued interest) pursuant to Section 4(c)(ii) by the Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated
damages and not as a penalty, for each US$1,000 of principal amount being converted, US$10 per Trading Day (increasing to US$20 per Trading
Day on the third Trading Day after the Share Delivery Date) for each Trading Day after such Share Delivery Date until such Conversion
Shares are delivered or Holder rescinds such conversion. Nothing herein shall limit a Holder’s right to pursue actual damages or
declare an Event of Default pursuant to Section 8 hereof for the Company’s failure to deliver Conversion Shares within the period
specified herein and the Holder shall have the right to pursue all remedies available to it hereunder, at law or in equity including,
without limitation, a decree of specific performance and/or injunctive relief. The exercise of any such rights shall not prohibit the
Holder from seeking to enforce damages pursuant to any other Section hereof or under applicable law.
v. Compensation
for Buy-In on Failure to Timely Deliver Conversion Shares Upon Conversion. In addition to any other rights available to the Holder,
if the Company fails for any reason to deliver to the Holder such Conversion Shares (for the avoidance of doubt, including the Conversion
Shares issuable as payment for accrued interest) by the Share Delivery Date pursuant to Section 4(c)(ii), and if after such Share Delivery
Date the Holder is required by its brokerage firm to purchase (in an open market transaction or otherwise), or the Holder’s brokerage
firm otherwise purchases, Ordinary Shares to deliver in satisfaction of a sale by the Holder of the Conversion Shares which the Holder
was entitled to receive upon the conversion relating to such Share Delivery Date (a “Buy-In”), then the Company shall
(A) pay in cash to the Holder (in addition to any other remedies available to or elected by the Holder) the amount, if any, by which
(x) the Holder’s total purchase price (including any brokerage commissions) for the Ordinary Shares so purchased exceeds (y) the
product of (1) the aggregate number of Ordinary Shares that the Holder was entitled to receive from the conversion at issue multiplied
by (2) the actual sale price at which the sell order giving rise to such purchase obligation was executed (including any brokerage commissions)
and (B) at the option of the Holder, either reissue (if surrendered) this Note in a principal amount equal to the principal amount of
the attempted conversion (in which case such conversion shall be deemed rescinded) or deliver to the Holder the number of Ordinary Shares
that would have been issued if the Company had timely complied with its delivery requirements under Section 4(c)(ii). For example, if
the Holder purchases Ordinary Shares having a total purchase price of US$11,000 to cover a Buy-In with respect to an attempted conversion
of this Note with respect to which the actual sale price of the Conversion Shares (including any brokerage commissions) giving rise to
such purchase obligation was a total of US$10,000 under clause (A) of the immediately preceding sentence, the Company shall be required
to pay the Holder US$1,000. The Holder shall provide the Company written notice indicating the amounts payable to the Holder in respect
of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing herein shall limit a Holder’s right
to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance
and/or injunctive relief with respect to the Company’s failure to timely deliver Conversion Shares upon conversion of this Note
as required pursuant to the terms hereof.
vi. Reservation
of Shares Issuable Upon Conversion. So long as any Notes remain outstanding, the Company covenants that it will at all times reserve
and keep available out of its authorized and unissued number of Ordinary Shares for the sole purpose of issuance upon conversion of this
Note and all other Notes as herein provided, free from preemptive rights or any other actual contingent purchase rights of Persons other
than the Holder (and the other holders of the Notes), not less than 100% of such aggregate number of Ordinary Shares as shall (subject
to the terms and conditions set forth in the Purchase Agreement) be issuable (taking into account the adjustments and restrictions of
Section 5) upon the conversion of the then outstanding principal amount of this Note and all other Notes (the “Required Minimum”);
provided, that on any date of determination, the Required Minimum shall be at least the maximum aggregate number of Ordinary Shares then
issued or potentially issuable in the future pursuant to this Note, based on the assumption that the Conversion Price equals 20% of the
VWAP on the Trading Day immediately preceding such date of determination. The Company covenants that all Ordinary Shares that shall be
so issuable shall, upon issue, be duly authorized, validly issued, fully paid and nonassessable and, if the applicable Registration Statement
is then effective for the Conversion Shares under the Securities Act, shall be registered for public resale in accordance with such Registration
Statement.
vii. Fractional
Shares. No fractional shares or scrip representing fractional shares shall be issued upon the conversion of this Note. As to any
fraction of a share which the Holder would otherwise be entitled to purchase upon such conversion, the Company shall at its election,
either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Conversion Price
or round up to the next whole share.
viii. Transfer
Taxes and Expenses. The issuance of Conversion Shares on conversion of this Note shall be made without charge to the Holder hereof
for any documentary stamp or similar taxes that may be payable in respect of the issue or delivery of such Conversion Shares, provided
that the Company shall not be required to pay any tax that may be payable in respect of any transfer involved in the issuance and delivery
of any such Conversion Shares upon conversion in a name other than that of the Holder of this Note so converted and the Company shall
not be required to issue or deliver such Conversion Shares unless or until the Person or Persons requesting the issuance thereof shall
have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid.
The Company shall pay all transfer agent fees required for same-day processing of any Notice of Conversion and all fees to the Depository
Trust Company (or another established clearing corporation performing similar functions) required for same-day electronic delivery of
the Conversion Shares.
d) Holder’s
Conversion Limitations. The Company shall not effect any conversion of this Note, and a Holder shall not have the right to convert
any portion of this Note, to the extent that after giving effect to the conversion set forth on the applicable Notice of Conversion,
the Holder (together with the Holder’s Affiliates, and any other Persons acting as a group together with the Holder or any of the
Holder’s Affiliates (such Persons, “Attribution Parties”)) would beneficially own in excess of the Beneficial
Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of Ordinary Shares beneficially owned
by the Holder and its Affiliates and Attribution Parties shall include the number of Conversion Shares issuable upon conversion of this
Note with respect to which such determination is being made, but shall exclude the number of Ordinary Shares which are issuable upon
(i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates
or Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company
subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other
Notes or the Warrants (as defined in the Purchase Agreement) beneficially owned by the Holder or any of its Affiliates or Attribution
Parties. Except as set forth in the preceding sentence, for purposes of this Section 4(d), beneficial ownership shall be calculated
in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation
contained in this Section 4(d) applies, the determination of whether this Note is convertible (in relation to other securities owned
by the Holder together with any Affiliates and Attribution Parties) and of which principal amount of this Note is convertible shall be
in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination
of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates or Attribution
Parties) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure
compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion
that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation
to verify or confirm the accuracy of such determination. In addition, a determination as to any group status as contemplated above shall
be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes
of this Section 4(d), in determining the number of outstanding Ordinary Shares, the Holder may rely on the number of outstanding Ordinary
Shares as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission,
as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the
Company’s transfer agent setting forth the number of Ordinary Shares outstanding. Upon the written or oral request of a Holder,
the Company shall within one Trading Day confirm orally and in writing to the Holder the number of Ordinary Shares then outstanding.
In any case, the number of outstanding Ordinary Shares shall be determined after giving effect to the conversion or exercise of securities
of the Company, including this Note, by the Holder or its Affiliates since the date as of which such number of outstanding Ordinary Shares
was reported. The “Beneficial Ownership Limitation” shall be 4.99% of the number of Ordinary Shares outstanding immediately
after giving effect to the issuance of the Conversion Shares issuable upon conversion of this Note held by the Holder. The Holder, upon
notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 4(d), provided that the
Beneficial Ownership Limitation in no event exceeds 9.99% of the number of Ordinary Shares outstanding immediately after giving effect
to the issuance of Conversion Shares upon conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions
of this Section 4(d) shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day
after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and
implemented in a manner otherwise than in strict conformity with the terms of this Section 4(d) to correct this paragraph (or any portion
hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein or to make changes
or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply
to each successor holder of this Note.
Section
5. Certain Adjustments.
a) Share
Dividends and Share Splits. If the Company, at any time while this Note is outstanding: (i) pays a share dividend or otherwise makes
a distribution or distributions payable in Ordinary Shares on Ordinary Shares or any Ordinary Share Equivalents (as defined in the Purchase
Agreement) (which, for avoidance of doubt, shall not include any Conversion Shares issued by the Company upon conversion of the Notes),
(ii) subdivides outstanding Ordinary Shares into a larger number of shares, (iii) combines (including by way of a reverse share split)
outstanding Ordinary Shares into a smaller number of shares or (iv) issues, in the event of a reclassification of Ordinary Shares, any
shares of capital stock of the Company, then the Conversion Price shall be multiplied by a fraction of which the numerator shall be the
number of Ordinary Shares (excluding any treasury shares of the Company) outstanding immediately before such event, and of which the
denominator shall be the number of Ordinary Shares outstanding immediately after such event. Any adjustment made pursuant to this Section
shall become effective immediately after the record date for the determination of shareholders entitled to receive such dividend or distribution
and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.
b) Reserved.
c) Subsequent
Rights Offerings. In addition to any adjustments pursuant to Section 5(a) above, if at any time the Company grants, issues or sells
any Ordinary Share Equivalents or rights to purchase shares, warrants, securities or other property pro rata to the record holders of
any class of Ordinary Shares (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms
applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number
of Ordinary Shares acquirable upon complete conversion of this Note (without regard to any limitations on exercise hereof, including
without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for the grant, issuance
or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of Ordinary Shares are to be
determined for the grant, issue or sale of such Purchase Rights (provided, however, that, to the extent that the Holder’s
right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder
shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such Ordinary Shares as a result
of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for the Holder until such time,
if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
d) Pro
Rata Distributions. During such time as this Note is outstanding, if the Company shall declare or make any dividend or other distribution
of its assets (or rights to acquire its assets) to holders of Ordinary Shares, by way of return of capital or otherwise (including, without
limitation, any distribution of cash, shares or other securities, property or options by way of a dividend, spin off, reclassification,
corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”), at any time after
the issuance of this Note, then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent
that the Holder would have participated therein if the Holder had held the number of Ordinary Shares acquirable upon complete conversion
of this Note (without regard to any limitations on conversion hereof, including without limitation, the Beneficial Ownership Limitation)
immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the
record holders of Ordinary Shares are to be determined for the participation in such Distribution (provided, however,
that, to the extent that the Holder’s right to participate in any such Distribution would result in the Holder exceeding the Beneficial
Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial
ownership of any Ordinary Shares as a result of such Distribution to such extent) and the portion of such Distribution shall be held
in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the
Beneficial Ownership Limitation).
e) Fundamental
Transaction. If, at any time while this Note is outstanding, (i) the Company, directly or indirectly, in one or more related transactions
effects any merger or consolidation of the Company with or into another Person, (ii) the Company (and all of its Subsidiaries, taken
as a whole), directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or
substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer
or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Ordinary Shares are permitted
to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of fifty percent
(50%) or more of the outstanding Ordinary Shares, (iv) the Company, directly or indirectly, in one or more related transactions effects
any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the
Ordinary Shares is effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly,
in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without
limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such
other Person or group acquires more than fifty percent (50%) of the outstanding Ordinary Shares (not including any Ordinary Shares held
by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such
stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”), then, upon any
subsequent conversion of this Note, the Holder shall have the right to receive, for each Conversion Share that would have been issuable
upon such conversion immediately prior to the occurrence of such Fundamental Transaction (without regard to any limitation in Section
4(d) on the conversion of this Note), the number of shares of capital stock or other equity security of the successor or acquiring corporation
or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”)
receivable as a result of such Fundamental Transaction by a holder of the number of Conversion Shares for which this Note is convertible
immediately prior to such Fundamental Transaction (without regard to any limitation in Section 4(d) on the conversion of this Note).
For purposes of any such conversion, the determination of the Conversion Price shall be appropriately adjusted to apply to such Alternate
Consideration based on the amount of Alternate Consideration issuable in respect of one (1) Ordinary Share in such Fundamental Transaction,
and the Company shall apportion the Conversion Price among the Alternate Consideration in a reasonable manner reflecting the relative
value of any different components of the Alternate Consideration. If holders of Ordinary Shares are given any choice as to the securities,
cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration
it receives upon any conversion of this Note following such Fundamental Transaction. The Company shall cause any successor entity in
a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all
of the obligations of the Company under this Note and the other Transaction Documents (as defined in the Purchase Agreement) in accordance
with the provisions of this Section 5(e) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and
approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the holder of this
Note, deliver to the Holder in exchange for this Note a security of the Successor Entity evidenced by a written instrument substantially
similar in form and substance to this Note which is convertible for a corresponding number of shares of capital stock or other equity
securities of such Successor Entity (or its parent entity) equivalent to the Conversion Shares acquirable and receivable upon conversion
of this Note (without regard to any limitations on the conversion of this Note) prior to such Fundamental Transaction, and with a conversion
price which applies the applicable Conversion Price hereunder to such shares of capital stock (but taking into account the relative value
of the Ordinary Shares pursuant to such Fundamental Transaction and the value of such shares of capital stock or other equity securities,
such number of shares of capital stock or other equity securities and such conversion price being for the purpose of protecting the economic
value of this Note immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form
and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted
for (so that from and after the date of such Fundamental Transaction, the provisions of this Note and the other Transaction Documents
referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company
and shall assume all of the obligations of the Company under this Note and the other Transaction Documents with the same effect as if
such Successor Entity had been named as the Company herein. Notwithstanding the preceding, if it is a condition of the buyer, which condition
the Required Holders have agreed to, that the Notes and/or Warrants not be assumed and must be converted in such Fundamental Transaction
into the equity and/or cash paid in such Fundamental Transaction, then this Note and/or such Warrants may be cancelled upon payment in
full therefor.
f) Calculations.
All calculations under this Section 5 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may
be. For purposes of this Section 5, the number of Ordinary Shares deemed to be issued and outstanding as of a given date shall exclude
any treasury shares of the Company.
g) Notice
to the Holder.
i. Adjustment
to Conversion Price. Whenever the Conversion Price is adjusted pursuant to any provision of this Section 5, the Company shall deliver
to each Holder within one (1) Trading Day a notice setting forth the Conversion Price after such adjustment and setting forth a brief
statement of the facts requiring such adjustment.
ii. Notice
to Allow Conversion by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the Ordinary
Shares, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Ordinary Shares, (C) the Company
shall authorize the granting to all holders of the Ordinary Shares of rights or warrants to subscribe for or purchase any shares of capital
stock of any class or of any rights, (D) the approval of any shareholders of the Company shall be required in connection with any reclassification
of the Ordinary Shares, any consolidation or merger to which the Company (and all of its Subsidiaries, taken as a whole) is a party,
any sale or transfer of all or substantially all of the assets of the Company, or any compulsory share exchange whereby the Ordinary
Shares are converted into other securities, cash or property or (E) the Company shall authorize the voluntary or involuntary dissolution,
liquidation or winding up of the affairs of the Company, then, in each case, the Company shall cause to be delivered to the Holder at
its last address as it shall appear upon the Note Register, at least twenty (20) calendar days prior to the applicable record or effective
date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution,
redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Ordinary Shares of record
to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification,
consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected
that holders of the Ordinary Shares of record shall be entitled to exchange their Ordinary Shares for securities, cash or other property
deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange, provided that the failure to deliver
such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified
in such notice. To the extent that any notice provided hereunder constitutes, or contains, material, non-public information regarding
the Company or any of the Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Report on
Form 6-K. The Holder shall remain entitled to convert this Note during the 20-day period commencing on the date of such notice through
the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
h) Voluntary
Adjustment by Company. Subject to the rules and regulations of the Principal Market, the Company may at any time during the term
of this Note, with the prior written consent of the Required Holders, reduce the then current Conversion Price of each of the Notes to
any amount and for any period of time deemed appropriate by the Board of Directors of the Company.
Section
6. Mandatory Redemption.
a) Mandatory
Redemption at Election of Holder.
i. If,
at any time while this Note is outstanding, the Company shall carry out one or more Subsequent Financings (as defined in the Purchase
Agreement), the Holder shall have the right to require the Company to first use up to 30% of the gross proceeds of such Subsequent Financing
to redeem all or a portion of this Note for an amount in cash equal to the outstanding principal amount of this Note, plus all accrued
but unpaid interest, plus all liquidated damages, if any, and any other amounts, if any, multiplied by 1.05 (the “Mandatory
Redemption Amount”) then owing to the Holder in respect of this Note (a “Mandatory Redemption”). The Company
shall deliver notice to the Holder of the Subsequent Financing at least five (5) Trading Days prior to the closing of the Subsequent
Financing (“Pre-Notice”), which Pre-Notice shall ask such Purchaser if it wants to review the details of such financing
(such additional notice, a “Mandatory Redemption Notice” and the date such Mandatory Redemption Notice is deemed delivered
hereunder, the “Mandatory Redemption Notice Date”). If the Holder exercises its right herein to require a Mandatory
Redemption by delivering written notice to the Company within five (5) Trading Days of the Mandatory Redemption Notice Date, the Company
shall effect the Mandatory Redemption and pay the Mandatory Redemption Amount to the Holder on or prior to the fifth (5th)
Trading Day following the consummation of the Subsequent Financing. The Company’s payment of the Mandatory Redemption Amount shall
be applied ratably to all of the holders of the then outstanding Notes which exercise the right to require a Mandatory Redemption on
the basis of their (or their predecessor’s) initial purchases of Notes pursuant to the Purchase Agreement. Notwithstanding the
foregoing, this Section 6 shall not apply with respect to an Exempt Issuance, except that no Variable Rate Transaction (as defined in
the Purchase Agreement) shall be an Exempt Issuance.
ii. If,
at any time while this Note is outstanding, a Change of Control Transaction shall occur, the Holder shall have the right to require the
Company to redeem all of this Note, plus all accrued but unpaid interest, plus all liquidated damages, if any, and any other amounts,
if any, then owing to the Holder in respect of this Note for an amount in cash equal to the Mandatory Redemption Amount. The Company
shall deliver notice to the Holder of the Change of Control at least five (5) Trading Days prior to the date on which the execution by
the Company of an agreement to which the Company is a party or by which it is bound, providing for such Change of Control (the “Change
of Control Redemption Notice Date”). If the Holder exercises its right herein to require a Mandatory Redemption pursuant to
this Section 6(a) by delivering written notice to the Company within five (5) Trading Days of the Change of Control Redemption Notice
Date, the Company shall effect such Mandatory Redemption and pay the Mandatory Redemption Amount to the Holder on or prior to the fifth
(5th) Trading Day following the consummation of the Change of Control. The Company’s payment of the Mandatory Redemption
Amount pursuant to this Section 6(a) shall be applied ratably to all of the holders of the then outstanding Notes which exercise the
right to require such a Mandatory Redemption on the basis of their (or their predecessor’s) initial purchases of Notes pursuant
to the Purchase Agreement. Notwithstanding the foregoing, this Section 6(a) shall not apply with respect to an Exempt Issuance, except
that no Variable Rate Transaction shall be an Exempt Issuance
b) Other
Mandatory Redemption. If, at any time while this Note is outstanding, any of the following occurs:
i. the
Registration Statement is not available for the offer and resale of the Conversion Shares covering all of the Securities then issued
prior to each Closing Date and to be issued on such Closing Date;
ii. the
VWAP of the Ordinary Shares on the Trading Day immediately preceding each Closing is less than or equal to US$0.40;
iii. the
average daily dollar volume for the Ordinary Shares during the each of the seven (7) consecutive Trading Days preceding any Closing is
less than US$200,000 per Trading Day (subject to adjustment for forward and reverse share splits, recapitalizations, share dividends
and the like); or
iv. the
Company has breached Section 4.11 of the Purchase Agreement;
and
which condition, in each case, is not cured within thirty (30) calendar days from the date on which the Company has failed to comply
with such condition, at the option of the Holder, this Note shall be redeemed by the Company on the thirty-first (31st) calendar
day after the date of such failure, plus all accrued but unpaid interest, plus all liquidated damages, if any, and any other amounts,
if any, then owing to the Holder in respect of this Note for an amount in cash equal to the Mandatory Redemption Amount.
Section
7. Negative Covenants. As long as any portion of this Note remains outstanding, unless the Required Holders shall have otherwise
given prior written consent, the Company shall not, and shall not permit any of the Subsidiaries to, directly or indirectly (except to
the extent permitted by the terms of the Purchase Agreement):
a) enter
into, create, incur, assume, guarantee or suffer to exist any Indebtedness (as defined in the Purchase Agreement) for borrowed money
of any kind exceeding US$100,000 in the aggregate, including, but not limited to, a guarantee, on or with respect to any of its property
or assets now owned or hereafter acquired or any interest therein or any income or profits therefrom (other than the Indebtedness evidenced
by this Note and the other Notes issued pursuant to the Purchase Agreement), unless such Indebtedness is used to repay the Notes in full
on a pro rata basis;
b) enter
into, create, incur, assume or suffer to exist any new Liens (as defined in the Purchase Agreement, occurring after the date of issuance
of this Note) of any kind, on or with respect to any of its property or assets now owned or hereafter acquired or any interest therein
or any income or profits therefrom;
c) amend
its charter or other organizational documents, including, without limitation, its certificate of incorporation, articles of association,
memorandum of association and bylaws, as applicable, in any manner that materially and adversely affects any rights of the Holder, except
for effecting a reverse share split for purposes of maintaining its Nasdaq listing, if so required;
d) repay,
repurchase or offer to repay, repurchase or otherwise acquire more than a de minimis number of Ordinary Shares or Ordinary
Share Equivalents other than as to (i) the Conversion Shares or Warrant Shares (as defined in the Warrants) as permitted or required
under the Transaction Documents and (ii) repurchases of Ordinary Shares or Ordinary Share Equivalents of departing officers and directors
of the Company, pursuant to any equity incentive approved by the disinterest member of the Board of Directors, provided that such repurchases
shall not exceed an aggregate of US$50,000 for all officers and directors during the term of this Note;
e) repay,
repurchase or offer to repay, repurchase or otherwise acquire any Indebtedness other than the Notes on a pro rata basis;
f) pay
cash dividends or distributions on any equity securities of the Company;
g) subject
to the conditions set forth in Section 4.19 of the Purchase Agreement, enter into any transaction with any Affiliate of the Company or
Related Party;
h) subject
to and except for the conditions set forth in Section 4.12 of the Purchase Agreement, enter into any Subsequent Equity Sales or Variable
Rate Transaction so long as any Notes are outstanding; or
i) enter
into any agreement with respect to any of the foregoing.
Section
8. Events of Default.
a) “Event
of Default” means, wherever used herein, any of the following events (whatever the reason for such event and whether such event
shall be voluntary or involuntary or effected by operation of law or pursuant to any judgment, decree or order of any court, or any order,
rule or regulation of any administrative or governmental body):
i. any
default in the payment of (A) the principal amount of any Note or (B) interest, liquidated damages and other amounts owing to a Holder
on any Note, as and when the same shall become due and payable (whether on a Conversion Date or the Maturity Date or by acceleration
or otherwise) which default, solely in the case of an interest payment or other default under clause (B) above, is not cured within three
(3) Trading Days;
ii. the
Company shall fail to observe or perform any other covenant or agreement contained in the Notes (other than a breach by the Company of
its obligations to deliver Ordinary Shares to the Holder upon conversion, which breach is addressed in clause (xi) below) or in any Transaction
Document, which failure is not cured, if possible to cure, within the earlier to occur of (A) five (5) Trading Days after notice of such
failure sent by the Holder or by any other Holder to the Company and (B) ten (10) Trading Days after the Company has become or should
have become aware of such failure;
iii. a
default or event of default (subject to any grace or cure period provided in the applicable agreement, document or instrument) shall
occur under (A) any of the Transaction Documents or (B) any other material agreement, lease, document or instrument to which the Company
or any Subsidiary is obligated (and not covered by clause (vi) below) with a cure period of ten (10) Trading Days of the date of the
occurrence;
iv. any
representation or warranty made in this Note, any other Transaction Documents, any written statement pursuant hereto or thereto or any
other report, financial statement or certificate made or delivered to the Holder or any other Holder shall be untrue or incorrect in
any material respect as of the date when made or deemed made, which, if curable, has not been cured within ten (10) Trading Days of date
of the occurrence;
v. the
Company or any significant Subsidiary (as such term is defined in Rule 1-02(w) of Regulation S-X) shall be subject to a Bankruptcy Event;
vi. the
Company or any Subsidiary shall default on any of its obligations under any mortgage, credit agreement or other facility, indenture agreement,
factoring agreement or other instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness
for borrowed money or money due under any long term leasing or factoring arrangement that (a) involves an obligation greater than US$250,000,
whether such Indebtedness now exists or shall hereafter be created, and (b) results in such Indebtedness becoming or being declared due
and payable prior to the date on which it would otherwise become due and payable;
vii. the
Ordinary Shares shall not be eligible for listing or quotation for trading on the Principal Market, which ineligibility for trading is
not cured by the Company within five (5) Trading Days;
viii. the
Company (and all of its Subsidiaries, taken as a whole) shall be a party to any Change of Control Transaction or Fundamental Transaction
or shall agree to sell or dispose of all or in excess of 50% of its assets in one transaction or a series of related transactions (whether
or not such sale would constitute a Change of Control Transaction);
ix. the
applicable Registration Statement shall not be effective for any reason on a continuous basis for more than ten (10) consecutive Trading
Days (or twenty (20) consecutive Trading Days in the event of any SEC review), or the Company does not meet the current public information
requirements under Rule 144 of the Securities Act in respect of the Conversion Shares and such condition continues and is not rectified
for more than ten (10) consecutive Trading Days (or twenty (20) consecutive Trading Days in the event of any SEC review;
x. if,
either (a) the effectiveness of the Registration Statement lapses for any reason or (b) the Holder shall not be permitted to resell Conversion
Shares under the Registration Statement for a period of more than twenty (20) consecutive Trading Days or thirty (30) non-consecutive
Trading Days during any 12 month period; provided, however, that if the Company is negotiating a merger, consolidation,
acquisition or sale of all or substantially all of its assets or a similar transaction and, in the written opinion of counsel to the
Company, the Registration Statement would be required to be amended to include information concerning such pending transaction(s) or
the parties thereto which information is not available or may not be publicly disclosed at the time, the Company shall be permitted an
additional ten (10) consecutive Trading Days during any twelve (12) month period pursuant to this Section 8(a)(x);
xi. the
Company shall fail for any reason to deliver Conversion Shares to a Holder prior to the third (3rd) Trading Day after a Conversion
Date pursuant to Section 4(c) or the Company shall provide at any time notice to the Holder, including by way of public announcement,
of the Company’s intention to not honor requests for conversions of any Notes in accordance with the terms hereof;
xii. any
Person shall materially breach any agreement delivered to the initial Holders pursuant to Section 2.2 of the Purchase Agreement;
xiii. the
electronic transfer by the Company of Ordinary Shares through the Depository Trust Company or another established clearing corporation
is no longer available or is subject to a “chill” for a period of five (5) Trading Days;
xiv. any
monetary judgment, writ or similar final process shall be entered or filed against the Company or any Subsidiary or any of their respective
properties or other assets for more than US$250,000, and such judgment, writ or similar final process shall remain unvacated, unbonded,
unstayed or unsatisfied for a period of 45 calendar days;
xv. the
Company shall fail to maintain authorization to issue, and an effective Registration Statement covering, the Required Minimum;
xvi. the
Company shall fail to timely make any filings required under the Exchange Act, accounting for any filing extensions allowed under the
Exchange Act; or
xvii. the
Company fails to satisfy the current public information requirements under Rule 144 of the Securities Act.
b) Remedies
Upon Event of Default. If any Event of Default occurs, the outstanding principal amount of this Note, plus accrued but unpaid interest,
liquidated damages and other amounts that may be owing in respect thereof through the date of acceleration shall become immediately due
and payable in cash at the Mandatory Default Amount. Upon the payment in full of the Mandatory Default Amount, the Holder shall promptly
surrender this Note to, or as directed by, the Company. In connection with such acceleration described herein, the Holder need not provide,
and the Company hereby waives, any presentment, demand, protest or other notice of any kind, and the Holder may immediately and without
expiration of any grace period enforce any and all of its rights and remedies hereunder and all other remedies available to it under
applicable law. Such acceleration may be rescinded and annulled by Holder at any time prior to payment hereunder and the Holder shall
have all rights as a holder of the Note until such time, if any, as the Holder receives full payment pursuant to this Section 8(b). No
such rescission or annulment shall affect any subsequent Event of Default or impair any right consequent thereon.
Section
9. Miscellaneous.
a) Notices.
Any and all notices or other communications or deliveries to be provided by the Holder hereunder, including, without limitation, any
Notice of Conversion, shall be in writing and delivered personally, by facsimile, by email attachment, or sent by a nationally recognized
overnight courier service, addressed to the Company, at the address set forth above, or such other facsimile number, email address, or
address as the Company may specify for such purposes by notice to the Holder delivered in accordance with this Section 9(a), with such
notice or communication to be simultaneously sent to the Company’s counsel. Any and all notices or other communications or
deliveries to be provided by the Company hereunder shall be in writing and delivered personally, by facsimile, by email attachment, or
sent by a nationally recognized overnight courier service addressed to each Holder at the facsimile number, email address or address
of the Holder appearing on the books of the Company, or if no such facsimile number or email attachment or address appears on the books
of the Company, at the principal place of business of such Holder, as set forth in the Purchase Agreement. Any notice or other communication
or deliveries hereunder shall be deemed given and effective on the earliest of (i) the date of transmission, if such notice or communication
is delivered via facsimile at the facsimile number or email attachment to the email address set forth on the signature pages attached
hereto prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the date of transmission, if such notice
or communication is delivered via facsimile at the facsimile number or email attachment to the email address set forth on the signature
pages attached hereto on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second
Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service or (iv) upon actual receipt
by the party to whom such notice is required to be given.
b) Absolute
Obligation. Except as expressly provided herein, no provision of this Note shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of, liquidated damages and accrued interest, as applicable, on this Note at the time,
place, and rate, and in the coin or currency, herein prescribed. This Note is a direct debt obligation of the Company.
c) Lost
or Mutilated Note. If this Note shall be mutilated, lost, stolen or destroyed, the Company shall execute and deliver, in exchange
and substitution for and upon cancellation of a mutilated Note, or in lieu of or in substitution for a lost, stolen or destroyed Note,
a new Note for the principal amount of this Note so mutilated, lost, stolen or destroyed, but only upon receipt of evidence of such loss,
theft or destruction of such Note, and of the ownership hereof, reasonably satisfactory to the Company.
d) Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of this Note shall be governed by and construed
and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflict of laws thereof.
Each party agrees that all legal proceedings concerning the interpretation, enforcement and defense of the transactions contemplated
by any of the Transaction Documents (whether brought against a party hereto or its respective Affiliates, directors, officers, shareholders,
employees or agents) shall be commenced in the state and federal courts sitting in The City of New York, Borough of Manhattan, State
of New York (the “New York Courts”). Each party hereto hereby irrevocably submits to the exclusive jurisdiction of
the New York Courts for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein (including with respect to the enforcement of any of the Transaction Documents), 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 such New York
Courts, or such New York Courts are improper or inconvenient venue for such proceeding. 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 via registered
or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this
Note 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 other manner permitted by applicable law. Each party hereto hereby
irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising
out of or relating to this Note or the transactions contemplated hereby. If any party shall commence an action or proceeding to enforce
any provisions of this Note, then the prevailing party in such action or proceeding shall be reimbursed by the other party for its attorneys’
fees and other costs and expenses incurred in the investigation, preparation and prosecution of such action or proceeding.
e) Waiver.
Any waiver by the Company or the Holder of a breach of any provision of this Note shall not operate as or be construed to be a waiver
of any other breach of such provision or of any breach of any other provision of this Note. The failure of the Company or the Holder
to insist upon strict adherence to any term of this Note on one or more occasions shall not be considered a waiver or deprive that party
of the right thereafter to insist upon strict adherence to that term or any other term of this Note on any other occasion. Any waiver
by the Company or the Holder must be in writing.
f) Severability.
If any provision of this Note is deemed invalid, illegal or unenforceable, the balance of this Note shall remain in effect, and if any
provision is inapplicable to any Person or circumstance, it shall nevertheless remain applicable to all other Persons and circumstances.
If it shall be found that any interest or other amount deemed interest due hereunder violates the applicable law governing usury, the
applicable rate of interest due hereunder shall automatically be lowered to equal the maximum rate of interest permitted under applicable
law. The Company covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension or usury law or other law which would prohibit or forgive the
Company from paying all or any portion of the principal of or interest on this Note as contemplated herein, wherever enacted, now or
at any time hereafter in force, or which may affect the covenants or the performance of this Note, and the Company (to the extent it
may lawfully do so) hereby expressly waives all benefits or advantage of any such law, and covenants that it will not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted to the Holder, but will suffer and permit the execution of
every such as though no such law has been enacted.
g) Remedies,
Characterizations, Other Obligations, Breaches and Injunctive Relief. The remedies provided in this Note shall be cumulative
and in addition to all other remedies available under this Note and any of the other Transaction Documents at law or in equity (including
a decree of specific performance and/or other injunctive relief), and nothing herein shall limit the Holder’s right to pursue actual
and consequential damages for any failure by the Company to comply with the terms of this Note. The Company covenants to the Holder
that there shall be no characterization concerning this instrument other than as expressly provided herein. Amounts set forth or provided
for herein with respect to payments, conversion and the like (and the computation thereof) shall be the amounts to be received by the
Holder and shall not, except as expressly provided herein, be subject to any other obligation of the Company (or the performance thereof).
The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Holder and that the remedy
at law for any such breach may be inadequate. The Company therefore agrees that, in the event of any such breach or threatened breach,
the Holder shall be entitled, in addition to all other available remedies, to an injunction restraining any such breach or any such threatened
breach, without the necessity of showing economic loss and without any bond or other security being required. The Company shall provide
all information and documentation to the Holder that is requested by the Holder to enable the Holder to confirm the Company’s compliance
with the terms and conditions of this Note.
h) Next
Business Day. Whenever any payment or other obligation hereunder shall be due on a day other than a Business Day, such payment shall
be made on the next succeeding Business Day.
i) Headings.
The headings contained herein are for convenience only, do not constitute a part of this Note and shall not be deemed to limit or affect
any of the provisions hereof.
j) Rank.
This Note ranks pari passu with all other Notes now or hereafter issued under the terms set forth herein. This Note
and all other Notes now or hereafter issued pursuant to the Purchase Agreement shall be senior to all other Indebtedness of the Company
and its Subsidiaries.
k) Equitable
Adjustment. Trading volume amounts, price/volume amounts, the amount of Warrants, the amount of Ordinary Shares identified
in the Purchase Agreement, Conversion Prices, Exercise Prices (as defined in the Warrants), the number of Conversion Shares and Warrant
Shares, and similar figures in the Transaction Documents shall be equitably adjusted (but without duplication) to offset the effect of
share splits, similar events and as otherwise described in the Purchase Agreement, Notes and Warrants.
l) Secured
Obligations. The obligations of the Company under this Debenture are secured by all assets of the Company and each Subsidiary pursuant
to the Security Agreement, dated as of September 27, 2024 between the Company, the Subsidiaries of the Company and the Secured Parties
(as defined therein).
m) Amendments.
This Note may be modified or amended or the provisions hereof waived with the written consent of the Company, on the one hand, and the
Holder, on the other hand.
Section
10. Disclosure. Upon receipt or delivery by the Company of any notice in accordance with the terms of this Note, unless the
Company has in good faith determined that the matters relating to such notice do not constitute material, nonpublic information relating
to the Company or its Subsidiaries, the Company shall within two (2) Business Days after such receipt or delivery publicly disclose such
material, nonpublic information on a Report on Form 6-K or otherwise as required by all applicable federal securities laws and the laws
and regulations of the Principal Market. In the event that the Company believes that a notice contains material, non-public information
relating to the Company or its Subsidiaries, the Company so shall indicate to the Holder contemporaneously with delivery of such notice,
and in the absence of any such indication, the Holder shall be allowed to presume that all matters relating to such notice do not constitute
material, nonpublic information relating to the Company or its Subsidiaries.
(Signature
Page Follows)
IN
WITNESS WHEREOF, the Company has caused this Note to be duly executed by a duly authorized officer as of the date first above indicated.
COLOR STAR TECHNOLOGY CO., LTD. |
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ANNEX
A
NOTICE
OF CONVERSION
The
undersigned hereby elects to convert principal under the Senior Secured Convertible Note due [___], 2025 (the “Note”)
of Color Star Technology Co., Ltd., a Cayman Islands exempted company (the “Company”), into the number of ordinary
shares, par value $0.04 per share, of the Company set forth below (the “Conversion Shares”) according to the conditions
hereof and in accordance with the Note, as of the date written below. If Conversion Shares are to be issued in the name of a person other
than the undersigned, the undersigned will pay all transfer taxes payable with respect thereto and is delivering herewith such certificates
and opinions as reasonably requested by the Company in accordance therewith. No fee will be charged to the holder for any conversion,
except for such transfer taxes, if any.
By
the delivery of this Notice of Conversion, the undersigned represents and warrants to the Company that its ownership of such ordinary
shares of the Company does not exceed the amounts specified under Section 4 of the Note, as determined in accordance with Section 13(d)
of the Securities and Exchange Act of 1934, and the rules and regulations promulgated thereunder.
The
undersigned agrees to comply with the prospectus delivery requirements under the applicable securities laws in connection with any transfer
of the aforesaid ordinary shares of the Company.
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Date
to Effect Conversion: |
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Check
box to indicate Fixed Conversion Price or Alternate Conversion Price (each as defined in the Notes): |
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Fixed Conversion Price: US$ _________ |
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☐
Alternate Conversion Price: US$ _________ |
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Principal
Amount of Note to be Converted: |
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Number
of Conversion Shares to be issued: |
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Signature: |
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Name: |
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Address
for Delivery of Ordinary Share Certificates: |
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or |
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DWAC
Instructions: |
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Broker
No.: ________________ |
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Account
No.: ________________ |
25
Exhibit
99.2
SERIES
A ORDINARY SHARE PURCHASE WARRANT
COLOR
STAR TECHNOLOGY CO., LTD.
Warrant Shares: [____] |
Issue Date: [_____], 2024 |
THIS
SERIES A ORDINARY SHARE PURCHASE WARRANT (the “Warrant”) certifies that, for value received, [________] or its assigns
(the “Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter
set forth, at any time on or after [_____]1 (the “Initial Exercise Date”), and on or prior to 5:00 p.m.
(New York City time) on the five (5) year anniversary of the Initial Exercise Date, provided that, if such date is not a Trading Day,
the immediately following Trading Day (the “Termination Date”) but not thereafter, to subscribe for and purchase from
Color Star Technology Co., Ltd., a Cayman Islands corporation (the “Company”), up to [____]2 Ordinary Shares
(as subject to adjustment hereunder, the “Warrant Shares”). [Notwithstanding the foregoing, if the closing price of
the Ordinary Shares shall be equal to or greater than US$2.25 for any Trading Day following the Issue Date, then the Warrant shall become
immediately exercisable]3. The purchase price of one Ordinary Share under this Warrant shall be equal to the Exercise Price,
as defined in Section 2(b).
Section
1. Definitions. In addition to the terms defined elsewhere in this Warrant, the following terms have the meanings indicated
in this Section 1:
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Bid
Price” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Ordinary Shares
are then listed or quoted on a Trading Market, the bid price of the Ordinary Shares for the time in question (or the nearest preceding
date) on the Trading Market on which the Ordinary Shares are then listed or quoted as reported by Bloomberg L.P. (based on a Trading
Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the
volume weighted average price of the Ordinary Shares for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c)
if the Ordinary Shares are not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Ordinary Shares are then reported
on the Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price
per Ordinary Share so reported, or (d) in all other cases, the fair market value of an Ordinary Share as determined by an independent
appraiser selected in good faith by the Holders of a majority in interest of the Warrants then outstanding and reasonably acceptable
to the Company, the fees and expenses of which shall be paid by the Company.
| 1 |
Insert 45 days following the Issuance Date for warrants issued for the First Closing. Insert
“the date hereof” for warrants issued under Additional Closings |
| 2 |
50% coverage per Closing, calculated by dividing each Note’s face value by the VWAP
(i) on the Trading Day on the date of the Purchase Agreement with respect to the First Closing,
and (ii) on the Trading Day immediately preceding the applicable closing with respect to
any Additional Closing. |
| 3 |
Only included in warrants issued for the First Closing. |
“Board
of Directors” means the board of directors of the Company.
“Business
Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized
or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee”
or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority
so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York generally
are open for use by customers on such day.
“Commission”
means the United States Securities and Exchange Commission.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Offering”
means the offering of securities pursuant to the Purchase Agreement.
“Ordinary
Shares” means the Class A ordinary shares of the Company, par value $0.04 per share, and any other class of securities into
which such securities may hereafter be reclassified or changed.
“Ordinary
Share Equivalents” means 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.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Purchase
Agreement” means that certain securities purchase agreement, dated September 27, 2024, between the Company and the signatories
therein.
“Registration
Statement” means the Company’s registration statement on Form F-3 (File No. 333-281668).
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Subsidiary”
means any subsidiary of the Company and shall, where applicable, also include any direct or indirect subsidiary of the Company formed
or acquired after the date hereof.
“Trading
Day” means a day on which the Ordinary Shares are traded on a Trading Market.
“Trading
Market” means any of the following markets or exchanges on which the Ordinary Shares are listed or quoted for trading on the
date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York
Stock Exchange, OTCQB or OTCQX (or any successors to any of the foregoing).
“Transfer
Agent” means Transhare Corporation, the current transfer agent of the Company, with a mailing address of 17755 North US Highway
19, Suite 140, Clearwater, FL 33764 and an email address of kwhiteside@transhare.com, and any successor transfer agent of the Company.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Ordinary Shares are then listed
or quoted on a Trading Market, the daily volume weighted average price of the Ordinary Shares for such date (or the nearest preceding
date) on the Trading Market on which the Ordinary Shares are then listed or quoted as reported by Bloomberg L.P. (based on a Trading
Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the
volume weighted average price of the Ordinary Shares for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c)
if the Ordinary Shares are not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Ordinary Shares are then reported
on the Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price
per Ordinary Share so reported, or (d) in all other cases, the fair market value of an Ordinary Share as determined by an independent
appraiser selected in good faith by the holders of a majority in interest of the Warrants then outstanding and reasonably acceptable
to the Company, the fees and expenses of which shall be paid by the Company.
“Warrants”
means this Warrant and other Series A Ordinary Share purchase warrants issued by the Company pursuant to the Registration Statement.
Section
2. Exercise.
a) Exercise
of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times on
or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed PDF copy submitted
by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto (the “Notice of Exercise”).
Within the earlier of (i) one (1) Trading Day and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined
in Section 2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise Price for the
shares specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United States bank unless
the cashless exercise procedure specified in Section 2(c) below is specified in the applicable Notice of Exercise. No ink-original Notice
of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise
be required. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to
the Company until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised in full,
in which case, the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading Days of the date on which
the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the
total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable
hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records
showing the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice
of Exercise within one (1) Business Day of receipt of such notice. The Holder and any assignee, by acceptance of this Warrant, acknowledge
and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the
number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on the face hereof.
b) Exercise
Price. The exercise price per Ordinary Share under this Warrant shall be US$[___]4, subject to adjustment hereunder (the
“Exercise Price”).
c) Cashless
Exercise. If at the time of exercise hereof there is no effective registration statement registering, or the prospectus contained
therein is not available for the issuance of the Warrant Shares to the Holder, then this Warrant may only be exercised, in whole or in
part, at such time by means of a “cashless exercise” in which the Holder shall be entitled to receive a number of Warrant
Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
| (A) | = |
as applicable: (i) the VWAP on the Trading Day immediately
preceding the date of the applicable Notice of Exercise if such Notice of Exercise is (1) both executed and delivered pursuant to Section
2(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant to Section 2(a) hereof on a Trading Day prior
to the opening of “regular trading hours” (as defined in Rule 600(b) of Regulation NMS promulgated under the federal securities
laws) on such Trading Day, (ii) the Bid Price of the Ordinary Shares on the principal Trading Market as reported by Bloomberg L.P. (“Bloomberg”)
as of the time of the Holder’s execution of the applicable Notice of Exercise if such Notice of Exercise is executed during “regular
trading hours” on a Trading Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close
of “regular trading hours” on a Trading Day) pursuant to Section 2(a) hereof or (iii) the VWAP on the date of the applicable
Notice of Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered
pursuant to Section 2(a) hereof after the close of “regular trading hours” on such Trading Day; |
| 4 | Equal
to 120% of the VWAP (i) on the Trading Day on the date of the Purchase Agreement with respect
to the First Closing, and (ii) on the Trading Day immediately preceding the applicable closing
with respect to any subsequent Closing. |
| (B) | = |
the Exercise Price of this Warrant, as adjusted hereunder;
and |
| (X) | = |
the number of Warrant Shares that would be issuable upon exercise
of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a cash exercise rather than a cashless
exercise. |
If
Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the
Securities Act, the Warrant Shares shall take on the registered characteristics of the Warrants being exercised. The Company agrees not
to take any position contrary to this Section 2(c).
Notwithstanding
anything herein to the contrary, thirty (30) days prior to the Termination Date, the Company shall provide notice to the Holder if the
Exercise Price of this Warrant then in effect is less than either (i) the official closing price of the Ordinary Shares on the Trading
Market on the Trading Day immediately prior to providing such notice and (ii) the average closing price of the Ordinary Shares on the
Trading Market for the five (5) Trading Days immediately prior to providing such notice.
i. Delivery
of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the Transfer
Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository Trust
Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant in such
system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the
Warrant Shares by Holder or (B) this Warrant is being exercised via cashless exercise), and otherwise by physical delivery of a certificate,
registered in the Company’s share register in the name of the Holder or its designee, for the number of Warrant Shares to which
the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise by the date that is
the earlier of (i) one (1) Trading Day after the delivery to the Company of the Notice of Exercise and (ii) the number of Trading Days
comprising the Standard Settlement Period after the delivery to the Company of the Notice of Exercise (such date, the “Warrant
Share Delivery Date”). Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have
become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of
delivery of the Warrant Shares, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise)
is received within the earlier of (i) one (1) Trading Day and (ii) the number of Trading Days comprising the Standard Settlement Period
following delivery of the Notice of Exercise. If the Company fails for any reason to deliver to the Holder the Warrant Shares subject
to a Notice of Exercise by the Warrant Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not
as a penalty, for each US$1,000 of Warrant Shares subject to such exercise (based on the VWAP of the Ordinary Shares on the date of the
applicable Notice of Exercise), US$10 per Trading Day (increasing to US$20 per Trading Day on the third Trading Day after the Warrant
Share Delivery Date) for each Trading Day after such Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds
such exercise. The Company agrees to maintain a transfer agent that is a participant in the FAST program so long as this Warrant remains
outstanding and exercisable. As used herein, “Standard Settlement Period” means the standard settlement period, expressed
in a number of Trading Days (including no Trading Days if the settlement date is the trade date), on the Company’s primary Trading
Market with respect to the Ordinary Shares as in effect on the date of delivery of the Notice of Exercise.
ii. Delivery
of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder and
upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant evidencing
the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other
respects be identical with this Warrant.
iii. Rescission
Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 2(d)(i)
by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
iv. Compensation
for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to the Holder, if
the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions of Section
2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required by
its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, Ordinary
Shares to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise
(a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the Holder’s
total purchase price (including brokerage commissions, if any) for the Ordinary Shares so purchased exceeds (y) the amount obtained by
multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection with the exercise at
issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B) at the option of the
Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise was not honored (in
which case such exercise shall be deemed rescinded) or deliver to the Holder the number of Ordinary Shares that would have been issued
had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the Holder purchases Ordinary Shares
having a total purchase price of US$11,000 to cover a Buy-In with respect to an attempted exercise of Ordinary Shares with an aggregate
sale price giving rise to such purchase obligation of US$10,000, under clause (A) of the immediately preceding sentence the Company shall
be required to pay the Holder US$1,000. The Holder shall provide the Company written notice indicating the amounts payable to the Holder
in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing herein shall limit a Holder’s
right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific
performance and/or injunctive relief with respect to the Company’s failure to timely deliver Ordinary Shares upon exercise of the
Warrant as required pursuant to the terms hereof.
v. No
Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this
Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall,
at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the
Exercise Price or round up to the next whole share.
vi. Charges,
Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other
incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company, and
such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided,
however, that, in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when
surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may
require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company
shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company
(or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.
vii. Closing
of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this Warrant,
pursuant to the terms hereof.
e) Holder’s
Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to exercise
any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance after exercise
as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other Persons acting
as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)),
would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence,
the number of Ordinary Shares beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number of
Ordinary Shares issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude the
number of Ordinary Shares which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant beneficially
owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or nonconverted
portion of any other securities of the Company (including, without limitation, any other Ordinary Share Equivalents) subject to a limitation
on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its Affiliates or Attribution
Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial ownership shall be calculated
in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged by the
Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d) of the Exchange Act
and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent that the limitation
contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation to other securities owned
by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable shall be in the
sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination of whether
this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties)
and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company shall
have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status as contemplated
above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder.
For purposes of this Section 2(e), in determining the number of outstanding Ordinary Shares, a Holder may rely on the number of outstanding
Ordinary Shares as reflected in (A) the Company’s most recent periodic or annual report filed with the Commission, as the case
may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company or the Transfer Agent
setting forth the number of Ordinary Shares outstanding. Upon the written or oral request of a Holder, the Company shall within
one Trading Day confirm orally and in writing to the Holder the number of Ordinary Shares then outstanding. In any case, the number
of outstanding Ordinary Shares shall be determined after giving effect to the conversion or exercise of securities of the Company, including
this Warrant, by the Holder or its Affiliates or Attribution Parties since the date as of which such number of outstanding Ordinary Shares
was reported. The “Beneficial Ownership Limitation” shall be 4.99% (or, upon election by a Holder prior to the issuance
of any Warrants, 9.99%) of the number of Ordinary Shares outstanding immediately after giving effect to the issuance of Ordinary Shares
issuable upon exercise of this Warrant. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation
provisions of this Section 2(e), provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of Ordinary
Shares outstanding immediately after giving effect to the issuance of Ordinary Shares upon exercise of this Warrant held by the Holder
and the provisions of this Section 2(e) shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective
until the 61st day after such notice is delivered to the Company. The provisions of this paragraph shall be construed and
implemented in a manner otherwise than in strict conformity with the terms of this Section 2(e) to correct this paragraph (or any portion
hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes
or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply
to a successor holder of this Warrant.
Section
3. Certain Adjustments.
a) Stock
Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise makes
a distribution or distributions on Ordinary Shares or any other equity or equity equivalent securities payable in Ordinary Shares (which,
for avoidance of doubt, shall not include any Ordinary Shares issued by the Company upon exercise of this Warrant), (ii) subdivides outstanding
Ordinary Shares into a larger number of shares, (iii) combines (including by way of reverse stock split) outstanding Ordinary Shares
into a smaller number of shares, or (iv) issues by reclassification of Ordinary Shares or any shares of capital stock of the Company,
then in each case the Exercise Price shall be multiplied by a fraction of which the numerator shall be the number of Ordinary Shares
(excluding treasury shares, if any) outstanding immediately before such event and of which the denominator shall be the number of Ordinary
Shares outstanding immediately after such event, and the number of shares issuable upon exercise of this Warrant shall be proportionately
adjusted such that the aggregate Exercise Price of this Warrant shall remain unchanged. Any adjustment made pursuant to this Section
3(a) shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend
or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.
b) Subsequent
Equity Sales. If the Company, the Company’s controlling shareholder or any Subsidiary thereof, as applicable, at any time while
this Warrant is outstanding, shall sell, enter into an agreement to sell, or grant any option to purchase, or sell or grant any right
to reprice, or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any
Ordinary Shares or Ordinary Share Equivalents, at an effective price per share less than the Exercise Price then in effect (such lower
price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (it being
understood and agreed that if the holder of the Ordinary Shares or Ordinary Share Equivalents so issued shall at any time, whether by
operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants,
options or rights per share which are issued in connection with such issuance, be entitled to receive Ordinary Shares at an effective
price per share that is less than the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price
on such date of the Dilutive Issuance at such effective price), then simultaneously with the consummation (or, if earlier, the announcement)
of each Dilutive Issuance the Exercise Price shall be reduced and only reduced to equal the Base Share Price. Notwithstanding the foregoing,
no adjustments shall be made, paid or issued under this Section 3(b) in respect of an Exempt Issuance (as defined in the Purchase Agreement).
For issuances other than an Exempt Issuance (in which case no notice shall be required), the Company shall notify the Holder, in writing,
no later than the Trading Day following the issuance or deemed issuance of any Ordinary Shares or Ordinary Share Equivalents subject
to this Section 3(b), indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and
other pricing terms (such notice, the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the
Company provides a Dilutive Issuance Notice pursuant to this Section 3(b), upon the occurrence of any Dilutive Issuance, the Holder is
entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to
the Base Share Price in the Notice of Exercise. If the Company enters into a Variable Rate Transaction (as defined in the Purchase Agreement),
the Company shall be deemed to have issued Ordinary Shares or Ordinary Share Equivalents at the lowest possible price, conversion price
or exercise price at which such securities may be issued, converted or exercised.
c) Subsequent
Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time the Company grants, issues or sells
any Ordinary Share Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record holders of
any class of Ordinary Shares (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms
applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number
of Ordinary Shares acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including
without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for the grant, issuance
or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of Ordinary Shares are to be
determined for the grant, issue or sale of such Purchase Rights (provided, however, that, to the extent that the Holder’s right
to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall
not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such Ordinary Shares as a result of
such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for the Holder until such time,
if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
d) Pro
Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or other distribution
of its assets (or rights to acquire its assets) to holders of Ordinary Shares, by way of return of capital or otherwise (including, without
limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification,
corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”), at any time after
the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent
that the Holder would have participated therein if the Holder had held the number of Ordinary Shares acquirable upon complete exercise
of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation)
immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the
record holders of Ordinary Shares are to be determined for the participation in such Distribution (provided, however, that,
to the extent that the Holder’s right to participate in any such Distribution would result in the Holder exceeding the Beneficial Ownership
Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership
of any Ordinary Shares as a result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance
for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial
Ownership Limitation).
e) Fundamental
Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions
effects any merger or consolidation of the Company with or into another Person, (ii) the Company or any Subsidiary, directly or indirectly,
effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in
one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the
Company or another Person) is completed pursuant to which holders of Ordinary Shares are permitted to sell, tender or exchange their
shares for other securities, cash or property and has been accepted by the holders of greater than 50% of the outstanding Ordinary Shares
or greater than 50% of the voting power of the common equity of the Company, (iv) the Company, directly or indirectly, in one or more
related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share
exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or
(v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other
business combination (including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with
another Person or group of Persons whereby such other Person or group acquires greater than 50% of the outstanding Ordinary Shares or
greater than 50% of the voting power of the common equity of the Company (each a “Fundamental Transaction”), then,
upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Warrant Share that would have been
issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without
regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of Ordinary Shares of the successor or acquiring
corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”)
receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares for which this Warrant is exercisable
immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant).
For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate
Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share in such Fundamental Transaction,
and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value
of any different components of the Alternate Consideration. If holders of Ordinary Shares are given any choice as to the securities,
cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration
it receives upon any exercise of this Warrant following such Fundamental Transaction. Notwithstanding anything to the contrary, in the
event of a Fundamental Transaction, the Company or any Successor Entity (as defined below) shall, at the Holder’s option, exercisable
at any time concurrently with, or within 30 days after, the consummation of the Fundamental Transaction (or, if later, the date of the
public announcement of the applicable Fundamental Transaction), purchase this Warrant from the Holder by paying to the Holder an amount
of cash equal to the Black Scholes Value (as defined below) of the remaining unexercised portion of this Warrant on the date of the consummation
of such Fundamental Transaction; provided, however, that, if the Fundamental Transaction is not within the Company’s
control, including not approved by the Company’s Board of Directors, the Holder shall only be entitled to receive from the Company
or any Successor Entity the same type or form of consideration (and in the same proportion), at the Black Scholes Value of the unexercised
portion of this Warrant, that is being offered and paid to the holders of Ordinary Shares of the Company in connection with the Fundamental
Transaction, whether that consideration be in the form of cash, stock or any combination thereof, or whether the holders of Ordinary
Shares are given the choice to receive from among alternative forms of consideration in connection with the Fundamental Transaction;
provided, further, that if holders of Ordinary Shares of the Company are not offered or paid any consideration in such
Fundamental Transaction, such holders of Ordinary Shares will be deemed to have received capital stock of the Successor Entity (which
Successor Entity may be the Company following such Fundamental Transaction) in such Fundamental Transaction. “Black Scholes
Value” means the value of this Warrant based on the Black-Scholes Option Pricing Model obtained from the “OV” function
on Bloomberg, L.P. (“Bloomberg”) determined as of the day of consummation of the applicable Fundamental Transaction
for pricing purposes and reflecting (A) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the time
between the date of the public announcement of the applicable contemplated Fundamental Transaction and the Termination Date, (B) an expected
volatility equal to the 100 day volatility as obtained from the HVT function on Bloomberg as of the Trading Day immediately following
the public announcement of the applicable contemplated Fundamental Transaction, (C) at the election of the Holder, the underlying price
per share used in such calculation shall be based on any of the following (i) the sum of the price per share being offered in cash, if
any, plus the value of any non-cash consideration, if any, being offered in such Fundamental Transaction, (ii) the VWAP immediately preceding
the public announcement of the applicable contemplated Fundamental Transaction or (iii) the consummation of the applicable Fundamental
Transaction, if earlier, (D) a remaining option time equal to the time between the date of the public announcement of the applicable
contemplated Fundamental Transaction and the Termination Date and (E) a zero cost of borrow. The payment of the Black Scholes Value will
be made by wire transfer of immediately available funds (or such other consideration) within the later of (i) five Business Days of the
Holder’s election and (ii) the date of consummation of the Fundamental Transaction. The Company shall cause any successor entity
in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing
all of the obligations of the Company under this Warrant in accordance with the provisions of this Section 3(e) pursuant to written agreements
in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental
Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity
evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding
number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares acquirable and receivable
upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction,
and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative
value of the Ordinary Shares pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares
of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to
the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the
occurrence of any such Fundamental Transaction, the Successor Entity shall be added to the term “Company” under this Warrant
(so that from and after the occurrence or consummation of such Fundamental Transaction, each and every provision of this Warrant and
the other Transaction Documents referring to the “Company” shall refer instead to each of the Company and the Successor Entity
or Successor Entities, jointly and severally), and the Successor Entity or Successor Entities, jointly and severally with the Company,
may exercise every right and power of the Company prior thereto and the Successor Entity or Successor Entities shall assume all of the
obligations of the Company prior thereto under this Warrant and the other Transaction Documents with the same effect as if the Company
and such Successor Entity or Successor Entities, jointly and severally, had been named as the Company herein. For the avoidance of doubt,
the Holder shall be entitled to the benefits of the provisions of this Section 3(e) regardless of (i) whether the Company has sufficient
authorized Ordinary Shares for the issuance of Warrant Shares and/or (ii) whether a Fundamental Transaction occurs prior to the Initial
Exercise Date.
f) Calculations.
All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes
of this Section 3, the number of Ordinary Shares deemed to be issued and outstanding as of a given date shall be the sum of the number
of Ordinary Shares (excluding treasury shares, if any) issued and outstanding.
g) Notice
to Holder.
i. Adjustment
to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly
deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number
of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii. Notice
to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the Ordinary
Shares, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Ordinary Shares, (C) the Company
shall authorize the granting to all holders of the Ordinary Shares rights or warrants to subscribe for or purchase any shares of capital
stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with any reclassification
of the Ordinary Shares, any consolidation or merger to which the Company (or any of its Subsidiaries) is a party, any sale or transfer
of all or substantially all of its assets, or any compulsory share exchange whereby the Ordinary Shares are converted into other securities,
cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs
of the Company, then, in each case, the Company shall cause to be delivered by email to the Holder at its last email address as it shall
appear upon the Warrant Register of the Company, at least 20 calendar days prior to the applicable record or effective date hereinafter
specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption,
rights or warrants, or if a record is not to be taken, the date as of which the holders of the Ordinary Shares of record to be entitled
to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification,
consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected
that holders of the Ordinary Shares of record shall be entitled to exchange their Ordinary Shares for securities, cash or other property
deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided that the failure to deliver
such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified
in such notice. To the extent that any notice provided in this Warrant constitutes, or contains, material, non-public information regarding
the Company or any of the Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report
on Form 6-K. The Holder shall remain entitled to exercise this Warrant during the period commencing on the date of such notice to the
effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
h) Voluntary
Adjustment By Company. Subject to the rules and regulations of the Trading Market, the Company may at any time during the term of
this Warrant reduce the then current Exercise Price to any amount and for any period of time deemed appropriate by the Board of Directors
of the Company.
Section
4. Transfer of Warrant.
a) Transferability.
Subject to compliance with any applicable securities laws, this Warrant and all rights hereunder (including, without limitation, any
registration rights) are transferable, in whole or in part, upon surrender of this Warrant at the principal office of the Company or
its designated agent, together with a written assignment of this Warrant substantially in the form attached hereto duly executed by the
Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer. Upon such surrender
and, if required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees,
as applicable, and in the denomination or denominations specified in such instrument of assignment, and shall issue to the assignor a
new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything
herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company unless the Holder has assigned
this Warrant in full, in which case, the Holder shall surrender this Warrant to the Company within three (3) Trading Days of the date
on which the Holder delivers an assignment form to the Company assigning this Warrant in full. The Warrant, if properly assigned in accordance
herewith, may be exercised by a new holder for the purchase of Warrant Shares without having a new Warrant issued.
b) New
Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of the Company,
together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the Holder or
its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division or combination,
the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in
accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the initial issuance date of this Warrant and
shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
c) Warrant
Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant
Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder
of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other
purposes, absent actual notice to the contrary.
Section
5. Miscellaneous.
a) No
Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights, dividends
or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly set
forth in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise” pursuant to
Section 2(c) or to receive cash payments pursuant to Section 2(d)(i) and Section 2(d)(iv) herein, in no event shall the Company be required
to net cash settle an exercise of this Warrant.
b) Loss,
Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory
to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares, and in case
of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant, shall not include
the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the Company will make
and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate.
c) Saturdays,
Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted
herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business Day.
d) Authorized
Shares.
The
Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Ordinary Shares
a sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant
up to the Maximum Eligibility Number of shares. The Company further covenants that its issuance of this Warrant shall constitute full
authority to its officers who are charged with the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights
under this Warrant. The Company will take all such reasonable action as may be necessary to assure that such Warrant Shares may be issued
as provided herein without violation of any applicable law or regulation, or of any requirements of the Trading Market upon which the
Ordinary Shares may be listed. The Company covenants that all Warrant Shares which may be issued upon the exercise of the purchase rights
represented by this Warrant will, upon exercise of the purchase rights represented by this Warrant and payment for such Warrant Shares
in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable and free from all taxes, liens and charges created
by the Company in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue).
Except
and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending
its certificate of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale
of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant,
but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary
or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the
foregoing, the Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise
immediately prior to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company
may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially
reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof,
as may be, necessary to enable the Company to perform its obligations under this Warrant.
Before
taking any action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the
Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from
any public regulatory body or bodies having jurisdiction thereof.
e) Reserved.
f) Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be governed by and
construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of
law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions
contemplated by this Warrant (whether brought against a party hereto or their respective affiliates, directors, officers, shareholders,
partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York.
Each party hereby irrevocably submits to the 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 herewith or with any transaction contemplated hereby
or discussed herein, 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 improper or is an inconvenient
venue for such proceeding. 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 via registered or certified mail or overnight delivery (with evidence of delivery)
to such party at the address in effect for notices to it under this Warrant 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
other manner permitted by law. If either party shall commence an action, suit or proceeding to enforce any provisions of this Warrant,
the prevailing party in such action, suit or proceeding shall be reimbursed by the other party for their reasonable attorneys’
fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
g) Restrictions.
The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and the Holder does not
utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
h) Nonwaiver
and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate as
a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other provision of
this Warrant, if the Company willfully and knowingly fails to comply with any provision of this Warrant, which results in any material
damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including,
but not limited to, reasonable attorneys’ fees, including those of appellate proceedings, incurred by the Holder in collecting
any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
i) Notices.
Any and all notices or other communications or deliveries to be provided by the Holders hereunder including, without limitation, any
Notice of Exercise, shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight courier service,
addressed to the Company, at 80 Broad Street, 5th Floor, New York, NY 10005, Attention: Louis Luo, email address: louisluo@colorstarinternational.com,
or such other email address or address as the Company may specify for such purposes by notice to the Holders. Any and all notices or
other communications or deliveries to be provided by the Company hereunder shall be in writing and delivered personally, by e-mail, or
sent by a nationally recognized overnight courier service addressed to each Holder at the e-mail address or address of such Holder appearing
on the books of the Company. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest
of (i) the time of transmission, if such notice or communication is delivered via e-mail at the e-mail address set forth in this Section
prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the time of transmission, if such notice or communication
is delivered via e-mail at the e-mail address set forth in this Section on a day that is not a Trading Day or later than 5:30 p.m. (New
York City time) on any Trading Day, (iii) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized
overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required to be given. To the extent that any
notice provided hereunder constitutes, or contains, material, non-public information regarding the Company or any Subsidiaries, the Company
shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 6-K.
j) Limitation
of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase Warrant
Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase
price of any Ordinary Shares or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of
the Company.
k) Remedies.
The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific
performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert the defense in any
action for specific performance that a remedy at law would be adequate.
l) Successors
and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the
benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of Holder.
The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall be enforceable
by the Holder or holder of Warrant Shares.
m) Amendment.
This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company, on the one hand, and
the Holder or the beneficial owner of this Warrant, on the other hand.
n) Severability.
Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
o) Headings.
The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this
Warrant.
********************
(Signature
Page Follows)
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above
indicated.
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COLOR STAR TECHNOLOGY CO., LTD. |
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NOTICE
OF EXERCISE
To: COLOR
STAR TECHNOLOGY CO., LTD.
(1) The
undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only if exercised
in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2) Payment
shall take the form of (check applicable box):
| ☐ | in lawful money of the United States; or |
| ☐ | if permitted the cancellation of such number of Warrant Shares
as is necessary, in accordance with the formula set forth in subsection 2(c), to exercise this Warrant with respect to the maximum number
of Warrant Shares purchasable pursuant to the cashless exercise procedure set forth in subsection 2(c). |
(3) Please
issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
_______________________________
The
Warrant Shares shall be delivered to the following DWAC Account Number:
_______________________________
_______________________________
_______________________________
[SIGNATURE
OF HOLDER]
Name
of Investing Entity: _______________________________________________________________________________
Signature
of Authorized Signatory of Investing Entity: _________________________________________________________
Name
of Authorized Signatory: ____________________________________________________________________________
Title
of Authorized Signatory: ____________________________________________________________________________
Date:
_______________________________________________________________________________________________
ASSIGNMENT
FORM
(To
assign the foregoing Warrant, execute this form and supply required information. Do not use this form to purchase shares.)
FOR
VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
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Dated: _______________ __, ______ |
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Exhibit 99.3
SECURITIES
PURCHASE AGREEMENT
This
Securities Purchase Agreement (this “Agreement”) is dated as of September __, 2024, by and between Color Star Technology
Co., Ltd., a Cayman Islands exempted company (the “Company”), and each purchaser identified on the signature pages
hereto (each, including its successors and assigns, a “Purchaser” and collectively, the “Purchasers”).
WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant to an effective registration statement under the Securities
Act (as defined below), the Company desires to issue and sell to each Purchaser, and each Purchaser, severally and not jointly, desires
to purchase from the Company, securities of the Company as more fully described in this Agreement.
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the Company and each Purchaser agree as follows:
ARTICLE
I.
DEFINITIONS
1.1 Definitions.
In addition to the terms defined elsewhere in this Agreement: (a) capitalized terms that are not otherwise defined herein have the meanings
given to such terms in the Notes (as defined herein), and (b) the following terms have the meanings set forth in this Section 1.1:
“Acquiring
Person” shall have the meaning ascribed to such term in Section 4.7.
“Action”
shall have the meaning ascribed to such term in Section 3.1(j).
“Additional
Closing” shall have the meaning ascribed to such term in Section 2.1.
“Additional
Closing Date” shall have the meaning ascribed to such term in Section 2.1.
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Board
of Directors” means the board of directors of the Company.
“Business
Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized
or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee”
or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority
so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York are generally
open for use by customers on such day.
“Closings”
means, collectively, each of the First Closing pursuant to Section 2.1(a) and each Additional
Closing pursuant to Section 2.1(b).
“Closing
Dates” means, collectively, the date on which each of the First Closing Date and each
Additional Closing occurs.
“Commission”
means the United States Securities and Exchange Commission.
“Company
Counsel” means collectively, each of the Company’s Cayman Islands counsel, Conyers Dill & Pearman LLP, and Company’s
U.S. counsel, Hunter Taubman Fischer & Li LLC.
“Conversion
Shares” shall have the meaning ascribed to such term in the Notes.
“Disclosure
Schedules” shall have the meaning ascribed to such term in Section 3.1.
“Disclosure
Time” means, (i) if this Agreement is signed on a day that is not a Trading Day or after 9:00 a.m. (New York City time) and
before midnight (New York City time) on any Trading Day, 9:01 a.m. (New York City time) on the Trading Day immediately following the
date hereof, unless otherwise instructed as to an earlier time by the Placement Agent, and (ii) if this Agreement is signed between midnight
(New York City time) and 9:00 a.m. (New York City time) on any Trading Day, no later than 9:01 a.m. (New York City time) on the date
hereof, unless otherwise instructed as to an earlier time by the Placement Agent.
“EGS”
means Ellenoff Grossman & Schole LLP, with offices located at 1345 Avenue of the Americas, New York, New York 10105-0302.
“Evaluation
Date” shall have the meaning ascribed to such term in Section 3.1(s).
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exempt
Issuance” means the issuance of (a) Ordinary Shares or options to employees, officers or directors of the Company pursuant
to any share or option plan duly adopted for such purpose, by a majority of the non-employee members of the Board of Directors or a majority
of the members of a committee of non-employee directors established for such purpose for services rendered to the Company, (b) securities
upon the exercise or exchange of or conversion of any Securities issued hereunder and/or other securities exercisable or exchangeable
for or convertible into Ordinary Shares issued and outstanding on the date of this Agreement, provided that such securities have not
been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange price
or conversion price of such securities (other than in connection with share splits, combinations or anti-dilution adjustments) or to
extend the term of such securities, and (c) securities issued pursuant to acquisitions or strategic transactions approved by a majority
of the disinterested directors of the Company, provided that such securities are issued as “restricted securities” (as defined
in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith
during the prohibition period in Section 4.12(a) herein, and provided that any such issuance shall only be to a Person (or to the equityholders
of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with
the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not
include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary
business is investing in securities.
“FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended.
“First
Closing” shall have the meaning ascribed to such term in Section 2.1.
“First
Closing Date” shall have the meaning ascribed to such term in Section 2.1.
“Fixed
Conversion Price” shall have the meaning ascribed to such term in the Notes.
“GAAP”
shall have the meaning ascribed to such term in Section 3.1(h).
“Indebtedness”
shall have the meaning ascribed to such term in Section 3.1(bb).
“Intellectual
Property Rights” shall have the meaning ascribed to such term in Section 3.1(o).
“Irrevocable
Transfer Agent Instructions” shall mean the Irrevocable Transfer Agent Instructions, dated as of the date of each Closing,
among the Company and the Transfer Agent, in the form reasonably satisfactory to the Purchasers.
“Lien”
means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Lock-Up
Agreement” means the Lock-Up Agreement, dated as of the date hereof, by and among the Company and the directors, officers,
and any Affiliates of such officers and directors and the Company, in the form of Exhibit C attached hereto.
“Material
Adverse Effect” shall have the meaning assigned to such term in Section 3.1(b).
“Material
Permits” shall have the meaning ascribed to such term in Section 3.1(m).
“Maximum
Rate” shall have the meaning ascribed to such term in Section 5.18.
“Notes”
means the Senior Convertible Notes due, subject to the terms therein, three hundred sixty-four (364) days from their respective dates
of issuance, issued by the Company to the Purchasers hereunder, in the form of Exhibit A attached hereto.
“Ordinary
Shares” means the ordinary shares of the Company, par value $0.04 per share, and any other class of securities into which such
securities may hereafter be reclassified or changed.
“Ordinary
Share Equivalents” means 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.
“Participation
Maximum” shall have the meaning ascribed to such term in Section 4.11(a).
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Placement
Agent” means Maxim Group LLC.
“Pledged
Securities” means any and all certificates and other instruments representing or evidencing all of the capital stock and other
equity interests of the Subsidiaries.
“Pre-Notice”
shall have the meaning ascribed to such term in Section 4.11(b).
“Principal
Amount” means, as to each Purchaser, the amounts set forth below such Purchaser’s signature block on the signature pages
hereto next to the heading “Principal Amount,” in United States Dollars, which shall equal such Purchaser’s Subscription
Amount multiplied by 1.086956522.
“Principal
Market” means the Nasdaq Capital Market.
“Pro
Rata Portion” shall have the meaning ascribed to such term in Section 4.11(e).
“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding,
such as a deposition), whether commenced or threatened.
“Prospectus”
means the final base prospectus filed for the Registration Statement.
“Prospectus
Supplement” means the supplement to the Prospectus complying with Rule 424(b) of the Securities Act that is filed with the
Commission and delivered by the Company to each Purchaser at the Closing.
“Purchaser
Party” shall have the meaning ascribed to such term in Section 4.10.
“Registration
Statement” means the effective registration statement with Commission file No. 333-281668 which registers the sale of the Notes,
the Warrants and the Warrant Shares to the Purchasers, and includes any Rule 462(b) Registration Statement.
“Required
Approvals” shall have the meaning ascribed to such term in Section 3.1(e).
“Rule
144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such rule.
“Rule
424” means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such rule may be amended or interpreted
from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect
as such rule.
“SEC
Reports” shall have the meaning ascribed to such term in Section 3.1(h).
“Securities”
means the Notes, the Warrants and the Underlying Shares.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Security
Agreement” means the Security Agreement, dated the date hereof, among the Company and the Purchasers, in the form of Exhibit
D attached hereto.
“Security
Documents” shall mean the Security Agreement, the Subsidiary Guarantees, the original Pledged Securities, along with medallion
guaranteed executed blank stock powers to the Pledged Securities, and any other documents and filing required thereunder in order to
grant the Purchasers a first priority security interest in the assets of the Company and the Subsidiaries as provided in the Security
Agreement, including all UCC-1 filing receipts.
“Short
Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be
deemed to include locating and/or borrowing Ordinary Shares).
“Subscription
Amount” means, as to each Purchaser, the aggregate amount to be paid for Notes and Warrants purchased hereunder at each Closing,
as specified below such Purchaser’s name on the signature page of this Agreement and next to the heading “Subscription Amount,”
in United States dollars and in immediately available funds.
“Subsequent
Financing” shall have the meaning ascribed to such term in Section 4.11(a).
“Subsequent
Financing Notice” shall have the meaning ascribed to such term in Section 4.11(b).
“Subsidiary”
means any subsidiary of the Company as set forth on Schedule 3.1(a) and shall, where applicable, also include any direct
or indirect subsidiary of the Company formed or acquired after the date hereof.
“Subsidiary
Guarantee” means the Subsidiary Guarantee, dated the date hereof, by each Subsidiary in favor of the Purchasers, in the form
of Exhibit E attached hereto.
“Trading
Day” means a day on which the Principal Market is open for trading.
“Trading
Market” means any of the following markets or exchanges on which the Ordinary Shares will, in accordance with the terms hereof,
be listed or quoted for trading on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the
Nasdaq Global Select Market, the New York Stock Exchange, the Pink Open Market, OTCQB or the OTCQX (or any successors to any of the foregoing).
“Transaction
Documents” means this Agreement, the Notes, the Security Agreement, the Subsidiary Guarantee, the Lock-Up Agreements, the Warrants,
the Irrevocable Transfer Agent Instructions, all exhibits and schedules thereto and hereto and any other documents or agreements executed
in connection with the transactions contemplated hereunder.
“Transfer
Agent” means Transhare Corporation, the current transfer agent of the Company, with a mailing address of 17755 North US Highway
19, Suite 140, Clearwater, FL 33764 and an email address of kwhiteside@transhare.com, and any successor transfer agent of the Company.
“Underlying
Shares” means the Warrant Shares and the Conversion Shares, in each case without respect to any limitation or restriction on
the conversion of the Notes or the exercise of the Warrants.
“Variable
Rate Transaction” shall have the meaning ascribed to such term in Section 4.12(b).
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Ordinary Shares are then listed
or quoted on a Trading Market, the daily volume weighted average price of the Ordinary Shares for such date (or the nearest preceding
date) on the Trading Market on which the Ordinary Shares are then listed or quoted as reported by Bloomberg L.P. (based on a Trading
Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the
volume weighted average price of the Ordinary Shares for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c)
if the Ordinary Shares are not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Ordinary Shares are then reported
on the Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price
per Ordinary Share so reported, or (d) in all other cases, the fair market value of an Ordinary Share as determined by an independent
appraiser selected in good faith by the Purchasers of a majority in interest of the Securities then outstanding and reasonably acceptable
to the Company, the fees and expenses of which shall be paid by the Company.
“Warrants”
means, collectively, the Ordinary Share purchase warrants delivered to the Purchasers at applicable Closing in accordance with Section
2.2(a) or Section 2.2(c), hereof, which (i) Warrants to be delivered in connection with the First Closing shall be exercisable forty-five
(45) days after issuance and (ii) Warrants to be delivered in connection with any Additional Closings shall be exercisable immediately
upon issuance and each have terms of exercise equal to five (5) years from their initial date of exercise, in the form of Exhibit B attached
hereto.
“Warrant
Shares” means the Ordinary Shares issuable upon exercise of the Warrants.
ARTICLE
II.
PURCHASE AND SALE
2.1 Closings.
(a) First
Closing. The first closing of the offer and sale of the Securities (the “First Closing”) shall occur at 10:00
am (New York City time) remotely by electronic transfer of the Closing documentation, or such other date, time or place (including remotely)
as is mutually agreed to by the Company and each Purchaser), subject to applicable federal securities
laws, on the first (1st) Trading Day on which the conditions to the First Closing set forth in Section 2.3 hereof are
satisfied or waived in writing as provided elsewhere herein (the “First Closing Date”).
(b) Additional
Closings. Each additional closing of the offer and sale of the Securities (each, an “Additional Closing”) shall
occur at 10:00 am (New York City time) remotely by electronic transfer of the Closing documentation, or such other date, time or place
(including remotely) as is mutually agreed to by the Company and each Purchaser), subject to applicable
federal securities laws, on the first (1st) Trading Day on which the conditions to such Additional Closing set forth
in Section 2.3 hereof are satisfied or waived in writing as provided elsewhere herein (each, an “Additional Closing Date”).
(c) Maximum
Aggregate Subscription Amount. For the avoidance of any doubt, it is the Parties’ intention that there will be a First Closing
pursuant to which Purchaser’s Subscription Amount delivered by such Purchaser shall equal US$7,000,000.00, and subject to the conditions
set forth herein with respect to each Additional Closing and upon each Purchaser and the Company’s mutual consent, each Purchaser’s
Subscription Amount shall be delivered in such amounts as determined by each such Purchaser and Company, with the maximum aggregate Subscription
Amounts to be delivered in connection with this Agreement not to exceed US$33,000,000.00.
2.2 Deliveries.
(a) On
or prior to the First Closing Date (except as indicated below), the Company shall deliver or cause to be delivered to each Purchaser
the following:
(i) this
Agreement duly executed by the Company;
(ii) legal
opinion(s) of Company Counsel, including a negative assurance letter, directed to the Placement Agent and the Purchasers, each in a form
reasonably acceptable to the Placement Agent and Purchasers;
(iii) the
specified Note having the respective principal amount set forth on Schedule 1, registered in the name of such Purchaser;
(iv) the
specified Warrant registered in the name of such Purchaser set forth on Schedule 1 to purchase up to a number of Warrant Shares set forth
on Schedule 1 on the First Closing Date, with an exercise price equal to the Exercise Price set forth in the specified Warrant, subject
to adjustment therein;
(v) the
Company shall have provided each Purchaser with the Company’s wire instructions, on Company letterhead and executed by the Company’s
Chief Executive Officer or Chief Financial Officer;
(vi) Irrevocable
Transfer Agent Instructions duly executed by the Company and the Transfer Agent;
(vii) the
Disclosure Schedules, updated as of such First Closing Date;
(viii) an
officer’s certificate, in a form reasonably acceptable to the Purchasers and Placement Agent;
(ix) a
secretary’s certificate, in a form reasonably acceptable to the Purchasers and the Placement Agent;
(x) on
the date hereof, the duly executed Lock-Up Agreements;
(xi) on
the date hereof, the Security Agreement, duly executed by the Company and each Subsidiary, along with all of the Security Documents,
including the Subsidiary Guarantee, duly executed by the parties thereto, the original Pledged Securities and corresponding stock powers;
(xii) the
Prospectus and Prospectus Supplement (which may be delivered in accordance with Rule 172 under the Securities Act; and
(xiii) such
other opinions, certificates, statements, including, without limitation, and agreements as the Purchasers and Placement Agent may reasonably
require.
(b) On
the First Closing Date, each Purchaser shall deliver or cause to be delivered to the Company, the following:
(i) this
Agreement duly executed by such Purchaser;
(ii) the
Security Agreement duly executed by such Purchaser; and
(iii) such
Purchaser’s Subscription Amount set forth on Schedule 1 by wire transfer to the account specified in writing by the Company.
(c) On
each Additional Closing Date, if any, the Company shall deliver or cause to be delivered to the specified Purchaser the following:
(i) the
specified Note having the respective principal amount set forth on Schedule 1, registered in the name of such Purchaser;
(ii)
the specified Warrant registered in the name of such Purchaser set forth on Schedule 1 to purchase up to a number of Warrant Shares set
forth on Schedule 1 on such Additional Closing Date, with an exercise price equal to the Exercise Price set forth in the specified Warrant,
subject to adjustment therein;
(iii) the
Disclosure Schedules, updated as of such Additional Closing Date;
(iv) the
Irrevocable Transfer Agent Instructions duly executed by the Company and the Transfer Agent;
(v) legal
opinions of Company Counsel, including negative assurance letters, directed to the Placement Agent and the Purchasers, each in a form
reasonably acceptable to the Placement Agent and Purchasers;
(vi) an
officer’s certificate, each in a form reasonably acceptable to the Purchasers’ counsel;
(vii) a
secretary’s certificate, in a form reasonably acceptable to the Purchasers and the Placement Agent;
(viii) the
Prospectus and Prospectus Supplement (which may be delivered in accordance with Rule 172 under the Securities Act; and
(ix) such
other opinions, certificates, statements, including, without limitation, and agreements as the Purchasers’ counsel may reasonably
require.
(d) On
or prior to each such Additional Closing Date, each Purchaser shall deliver the Purchaser’s Subscription Amount for the Notes set
forth on Schedule 1 at such Additional Closing by wire transfer to the account specified in writing by the Company.
2.3 Closing
Conditions.
(a) The
obligations of the Company hereunder in connection with the First Closing are subject to all of the following conditions being met:
(i) the
accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality, in all respects) on
the Closing Date for such Closing of the representations and warranties of the Purchasers contained herein (unless as of a specific date
therein in which case they shall be accurate in all material respects (or, to the extent representations or warranties are qualified
by materiality, in all respects) as of such date);
(ii) all
obligations, covenants and agreements of each Purchaser required to be performed at or prior to the Closing Date for such Closing shall
have been performed;
(iii) the
delivery by each Purchaser of the items set forth in Section 2.2(b) or Section 2.2(d), as applicable, of this Agreement; and
(iv) the
specified Purchaser’s Subscription Amount being equal to the purchase price for the Notes due and payable at such Closing.
(b) Subject
to Section 2.3(c), if applicable, the respective obligations of the Purchasers hereunder in connection with each Closing are subject
to all of the following conditions being met:
(i) the
accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect,
in all respects) when made and on the Closing Date for such Closing of the representations and warranties of the Company contained herein
(unless as of a specific date therein in which case they shall be accurate in all respects or, to the extent representations or warranties
are qualified by materiality or Material Adverse Effect, in all respects) as of such date);
(ii) all
obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date for such Closing shall
have been performed;
(iii) the
delivery by the Company of the items set forth in Section 2.2(a) or Section 2.2(c), as applicable, of this Agreement;
(iv) there
shall have been no Material Adverse Effect with respect to the Company since the date hereof and no existing event which, with the passage
of time or the giving of notice, would constitute an Event of Default;
(v) from
the date hereof to the Closing Date for such Closing, trading in Ordinary Shares shall not have been suspended by the Commission or the
Principal Market and, at any time prior to such Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not
have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service,
or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities
nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such
magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of
such Purchaser, makes it impracticable or inadvisable to purchase the Securities at such Closing;
(vi) as
of such Closing Date, the Registration Statement covering all of the Securities then issued prior to such Closing Date and to be issued
on such Closing Date is currently effective and no stop order or other order suspending the effectiveness of the Registration Statement
has been issued by the Commission;
(vii) any
other conditions contained herein or the other Transaction Documents, including those set forth in Section 2.2; and
(viii) prior
to such Closing, the Company has submitted a Listing of Additional Shares Notification Form with The Nasdaq Stock Market LLC with respect
to each issuance of Securities pursuant to this Agreement.
(c) The
respective obligations of each Purchaser hereunder in connection with each Additional Closing are subject to all of the following conditions
being met:
(i) all
of the First Closing conditions set forth in Section 2.3(b) have been met; and
(ii) each
Purchaser and the Company have mutually agreed to consummate such Additional Closing.
ARTICLE
III.
REPRESENTATIONS AND WARRANTIES
3.1 Representations
and Warranties of the Company. Except as set forth in the Disclosure Schedules, which Disclosure Schedules shall be deemed a part
hereof and shall qualify any representation or otherwise made herein as of each Closing Date to the extent of the disclosure contained
in the corresponding section of the Disclosure Schedules, the Company hereby makes the following representations and warranties to each
Purchaser:
(a) Subsidiaries.
All of the direct and indirect subsidiaries of the Company are set forth on Schedule 3.1(a). The Company owns, directly or
indirectly, all of the capital stock or other equity interests of each Subsidiary free and clear of any Liens, and all of the issued
and outstanding shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive
and similar rights to subscribe for or purchase securities. If the Company has no subsidiaries, all other references to the Subsidiaries
or any of them in the Transaction Documents shall be disregarded.
(b) Organization
and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power and authority
to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any Subsidiary
is in violation nor default of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational
or charter documents. Each of the Company and the Subsidiaries is duly qualified to conduct business and is in good standing as a foreign
corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification
necessary, except where the failure to be so qualified or in good standing, as the case may be, could not have or reasonably be expected
to result in: (i) a material adverse effect on the legality, validity or enforceability of any Transaction Document, (ii) a material
adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise) of the Company and the
Subsidiaries, taken as a whole, or (iii) a material adverse effect on the Company’s ability to perform in any material respect
on a timely basis its obligations under any Transaction Document (any of (i), (ii) or (iii), a “Material Adverse Effect”)
and no Proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail
such power and authority or qualification.
(c) Authorization;
Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated
by this Agreement and each of the other Transaction Documents and otherwise to carry out its obligations hereunder and thereunder. The
execution and delivery of this Agreement and each of the other Transaction Documents by the Company and the consummation by it of the
transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of the Company and no further
action is required by the Company, the Board of Directors or the Company’s shareholders in connection herewith or therewith other
than in connection with the Required Approvals. This Agreement and each other Transaction Document to which it is a party has been (or
upon delivery will have been) duly executed by the Company and, when delivered in accordance with the terms hereof and thereof, will
constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except (i) as
limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable
law. With respect to the Subsidiary Guarantee, each of the Subsidiaries has the requisite corporate power and authority to enter into
and to consummate the transactions contemplated by such agreement and otherwise to carry out its obligations thereunder. The execution
and delivery of the Subsidiary Guarantee and the consummation by the Company of the transactions contemplated thereby have been duly
authorized by all necessary action on the part of the Company, and no further action is required by the respective Subsidiary, its managers
or its members in connection therewith. The Subsidiary Guarantee has been (or upon delivery will have been) duly executed by the respective
Subsidiaries and, when delivered in accordance with the terms thereof, will constitute the valid and binding obligation of the respective
Subsidiary enforceable against such Subsidiary in accordance with its terms, except (A) as listed by general equitable principals and
applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’
rights generally, (B) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies
and (C) insofar as indemnification and contribution provisions may be limited by applicable law.
(d) No
Conflicts. Except as set forth in Schedule 3.1(d), for which a written waiver shall be obtained prior to the execution of
this Agreement, the execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to which
it is a party, the issuance and sale of the Securities and the consummation by it of the transactions contemplated hereby and thereby
do not and will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate or articles
of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with, or constitute a default (or an event that
with notice or lapse of time or both would become a default) under, result in the creation of any Lien upon any of the properties or
assets of the Company or any Subsidiary, or give to others any rights of termination, amendment, anti-dilution or similar adjustments,
acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument
(evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or by
which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals, conflict
with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or
governmental authority to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations),
or by which any property or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and
(iii), such as could not have or reasonably be expected to result in a Material Adverse Effect.
(e) Filings,
Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any notice to,
or make any filing or registration with, any court or other federal, state, local or other governmental authority or other Person in
connection with the execution, delivery and performance by the Company of the Transaction Documents, other than: (i) the filings required
pursuant to Section 4.6 of this Agreement, (ii) the filing with the Commission of the Prospectus Supplement, (iii) the notice and/or
application(s) to each applicable Trading Market for the issuance and sale of the Securities and the listing of the Conversion Shares
and Warrant Shares for trading thereon in the time and manner required thereby, and (iv) such filings as are required to be made under
applicable state securities laws (collectively, the “Required Approvals”).
(f) Issuance
of the Securities; Registration. Each of the Notes and the Warrants are duly authorized by the Company and, when issued and paid
for in accordance with this Agreement, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed
by the Company. The Conversion Shares, when issued upon valid conversion of the Notes in accordance with the terms thereof, will be validly
issued, fully paid and nonassessable Ordinary Shares, free and clear of all Liens imposed by the Company. The Warrant Shares, when issued
and sold by the Company upon valid exercise of the Warrants in accordance with the terms thereof, will be validly issued, fully paid
and nonassessable Ordinary Shares, free and clear of all Liens imposed by the Company. The Company has reserved from its duly authorized
capital stock the maximum number of Ordinary Shares for issuance of the Underlying Shares pursuant to this Agreement and the Notes and
Warrants. The Company has prepared and filed a Registration Statement on Form F-3, as amended (File No. 333-281668), in conformity with
the requirements of the Securities Act, which became effective on August 28, 2024, including the Prospectus, and such amendments and
supplements thereto as may have been required to the date of this Agreement. The Registration Statement is effective under the Securities
Act and no stop order preventing or suspending the effectiveness of the Registration Statement or suspending or preventing the use of
the Prospectus Supplement forming a part thereof has been issued by the Commission and no proceedings for that purpose have been instituted
or, to the knowledge of the Company, are threatened by the Commission. At the time the Registration Statement and any amendments thereto
became effective, at the date of this Agreement and at each Closing Date, such Registration Statement and any amendments thereto conformed
and will conform in all material respects to the requirements of the Securities Act and did not and will not contain any untrue statement
of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading;
and the Prospectus and any amendments or supplements thereto, at the time the Prospectus or any amendment or supplement thereto was issued
and at the Closing Date, conformed and will conform in all material respects to the requirements of the Securities Act and did not and
will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading. The Company was and will be at the time of the filing of the
Registration Statement eligible to use Form F-3. The Company is eligible to use Form F-3 under the Securities Act and it meets the transaction
requirements with respect to the aggregate market value of securities being sold pursuant to this offering and during the twelve (12)
months prior to this offering, as set forth in General Instruction I.B.1 of Form F-3. All corporate action required to be taken for the
authorization, issuance and sale of the Notes, Warrants, Conversion Shares and Warrant Shares has been duly and validly taken. The Ordinary
Shares conform in all material respects to all statements with respect thereto contained in the Registration Statement and the accompanying
Prospectus and Prospectus Supplement.
(g) Capitalization.
The capitalization of the Company as of the date hereof is as set forth on Schedule 3.1(g), which Schedule 3.1(g) shall
also include the number of Ordinary Shares owned beneficially, and of record, by Affiliates of the Company as of the date hereof. The
Company has not issued any capital stock since its most recently filed Current Report on Form 6-K under the Exchange Act, other than
pursuant to the exercise of employee share options under the Company’s share option plans, the issuance of Ordinary Shares to employees
pursuant to the Company’s employee share purchase plans and pursuant to the conversion and/or exercise of Ordinary Share Equivalents
outstanding as of the date of the most recently filed Current Report on Form 6-K under the Exchange Act. No Person has any right of first
refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by the Transaction
Documents. Except as a result of the purchase and sale of the Securities and as set forth on Schedule 3.1(g), there are (i)
no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities,
rights or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire,
any Ordinary Shares or the capital stock of any Subsidiary, or contracts, commitments, understandings or arrangements by which the Company
or any Subsidiary is or may become bound to issue additional Ordinary Shares or Ordinary Share Equivalents or capital stock of any Subsidiary;
(ii) the issuance and sale of the Securities will not obligate the Company or any Subsidiary to issue Ordinary Shares or other securities
to any Person (other than the Purchasers); (iii) there are no outstanding securities or instruments of the Company or any Subsidiary
with any provision that adjusts the exercise, conversion, exchange or reset price of such security or instrument upon an issuance of
securities by the Company or any Subsidiary; (iv) there are no outstanding securities or instruments of the Company or any Subsidiary
that contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the
Company or any Subsidiary is or may become bound to redeem a security of the Company or such Subsidiary; and (v) the Company does not
have any share appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement. All of the outstanding
shares of capital stock of the Company are duly authorized, validly issued, fully paid and nonassessable, have been issued in compliance
with all federal and state securities laws, and none of such outstanding shares was issued in violation of any preemptive rights or similar
rights to subscribe for or purchase securities. No further approval or authorization of any shareholder, the Board of Directors or others
is required for the issuance and sale of the Securities. There are no shareholders agreements, voting agreements or other similar agreements
with respect to the Company’s capital stock to which the Company is a party or, to the knowledge of the Company, between or among
any of the Company’s shareholders.
(h) SEC
Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required to be
filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two
(2) year preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the
foregoing materials, including the exhibits thereto and documents incorporated by reference therein, together with the Prospectus and
the Prospectus Supplement, being collectively referred to herein as the “SEC Reports”) on a timely basis or has received
a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their
respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act,
as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading. The Company has never been an issuer subject to Rule 144(i) under the Securities Act. The financial statements
of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and
regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements have been prepared in
accordance with United States generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”),
except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements
may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company and
its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended,
subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments.
(i) Material
Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included within
the SEC Reports, except as set forth on Schedule 3.1(i), (i) there has been no event, occurrence or development that has had or
that could reasonably be expected to result in a Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent
or otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary course of business consistent with past practice
and (B) liabilities not required to be reflected in the Company’s financial statements pursuant to GAAP or disclosed in filings
made with the Commission, (iii) the Company has not altered its method of accounting, (iv) the Company has not declared or made any dividend
or distribution of cash or other property to its shareholders or purchased, redeemed or made any agreements to purchase or redeem any
shares of its capital stock and (v) the Company has not issued any equity securities to any officer, director or Affiliate, except pursuant
to existing Company share option plans. The Company does not have pending before the Commission any request for confidential treatment
of information. Except for the issuance of the Securities contemplated by this Agreement or as set forth on Schedule 3.1(i), no
event, liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist with
respect to the Company or its Subsidiaries or their respective businesses, prospects, properties, operations, assets or financial condition
that would be required to be disclosed by the Company under applicable securities laws at the time this representation is made or deemed
made that has not been publicly disclosed at least one (1) Trading Day prior to the date that this representation is made.
(j) Litigation.
Except as set forth on Schedule 3.1(j), there is no action, suit, inquiry, notice of violation, proceeding or investigation pending
or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties
before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign)
(collectively, an “Action”). None of the Actions set forth on Schedule 3.1(j), (i) adversely affects or challenges
the legality, validity or enforceability of any of the Transaction Documents or the Securities 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 any director
or officer thereof, is or has been the subject of any Action involving a claim of violation of or liability under federal or state securities
laws or a claim of breach of fiduciary duty. There has not been, and to the knowledge of the Company, there is not pending or contemplated,
any investigation by the Commission involving the Company or any current or former director or officer of the Company. The Commission
has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary
under the Exchange Act or the Securities Act.
(k) Labor
Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees of the Company,
which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its Subsidiaries’ employees
is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary, and neither the Company
nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries believe that their
relationships with their employees are good. To the knowledge of the Company, no executive officer of the Company or any Subsidiary,
is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary
information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third
party, and the continued employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability
with respect to any of the foregoing matters. The Company and its Subsidiaries are in compliance with all U.S. federal, state, local
and foreign laws and regulations relating to employment and employment practices, terms and conditions of employment and wages and hours,
except where the failure to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
(l) Compliance.
Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred that has not been waived
that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under), nor has the Company or
any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture, loan or credit agreement
or any other agreement or instrument to which it is a party or by which it or any of its properties is bound (whether or not such default
or violation has been waived), (ii) is in violation of any judgment, decree or order of any court, arbitrator or other governmental authority
or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any governmental authority, including without limitation
all foreign, federal, state and local laws relating to taxes, environmental protection, occupational health and safety, product quality
and safety and employment and labor matters, except in each case as could not have or reasonably be expected to result in a Material
Adverse Effect.
(m) Environmental
Laws. The Company and its Subsidiaries (i) are in compliance with all federal, state, local and foreign laws relating to pollution
or protection of human health or the environment (including ambient air, surface water, groundwater, land surface or subsurface strata),
including laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, or toxic or
hazardous substances or wastes (collectively, “Hazardous Materials”) into the environment, or otherwise relating to
the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials, as well as
all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments, licenses, notices or notice letters, orders,
permits, plans or regulations, issued, entered, promulgated or approved thereunder (“Environmental Laws”); (ii) have
received all permits licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses;
and (iii) are in compliance with all terms and conditions of any such permit, license or approval where in each clause (i), (ii) and
(iii), the failure to so comply could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
(n) Regulatory
Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal,
state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the SEC Reports, except
where the failure to possess such permits could not reasonably be expected to result in a Material Adverse Effect (“Material
Permits”), and neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation or
modification of any Material Permit.
(o) Title
to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned by them and good
and marketable title in all personal property owned by them that is material to the business of the Company and the Subsidiaries, in
each case free and clear of all Liens, except for (i) Liens as do not materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries and (ii) Liens for the payment
of federal, state or other taxes, for which appropriate reserves have been made therefor in accordance with GAAP and, the payment of
which is neither delinquent nor subject to penalties. Any real property and facilities held under lease by the Company and the Subsidiaries
are held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries are in compliance.
(p) Intellectual
Property. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications, trademarks, trademark applications,
service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property rights and similar rights
necessary or required for use in connection with their respective businesses as described in the SEC Reports and which the failure to
so have could have a Material Adverse Effect (collectively, the “Intellectual Property Rights”). None of, and neither
the Company nor any Subsidiary has received a notice (written or otherwise) that any of, the Intellectual Property Rights has expired,
terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2) years from the date of this Agreement.
Neither the Company nor any Subsidiary has received, since the date of the latest audited financial statements included within the SEC
Reports, a written notice of a claim or otherwise has any knowledge that the Intellectual Property Rights violate or infringe upon the
rights of any Person, except as could not have or reasonably be expected to not have a Material Adverse Effect. To the knowledge of the
Company, all such Intellectual Property Rights are enforceable and there is no existing infringement by another Person of any of the
Intellectual Property Rights. The Company and its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality
and value of all of their intellectual properties, except where failure to do so could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
(q) Intentionally
Omitted.
(r) Transactions
With Affiliates and Employees. Except as set forth on Schedule 3.1(r), 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 (each a “Related Party”), in each case
in excess of US$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 share option agreements under any share option plan of
the Company.
(s) Sarbanes-Oxley;
Internal Accounting Controls. The Company and the Subsidiaries are in compliance with any and all applicable requirements of the
Sarbanes-Oxley Act of 2002, as amended, that are effective as of the date hereof, and any and all applicable rules and regulations promulgated
by the Commission thereunder that are effective as of the date hereof and as of each Closing Date. The Company and the Subsidiaries maintain
a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance
with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with
management’s general or specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to any differences. The Company and the Subsidiaries have established
disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and the Subsidiaries and
designed such disclosure controls and procedures to ensure that information required to be disclosed by the Company in the reports it
files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s
rules and forms. The Company’s certifying officers have evaluated the effectiveness of the disclosure controls and procedures of
the Company and the Subsidiaries as of the end of the period covered by the most recently filed periodic report under the Exchange Act
(such date, the “Evaluation Date”). The Company presented in its most recently filed periodic report under the Exchange
Act the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures based on their evaluations
as of the Evaluation Date. Since the Evaluation Date, there have been no changes in the internal control over financial reporting (as
such term is defined in the Exchange Act) of the Company and its Subsidiaries that have materially affected, or is reasonably likely
to materially affect, the internal control over financial reporting of the Company and its Subsidiaries.
(t) Certain
Fees. Except for fees payable by the Company to the Placement Agent, no brokerage or finder’s fees or commissions are or will
be payable by the Company or any Subsidiary to any broker, financial advisor or consultant, finder, placement agent, investment banker,
bank or other Person with respect to the transactions contemplated by the Transaction Documents. The Purchasers shall have no obligation
with respect to any fees or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated in this
Section that may be due in connection with the transactions contemplated by the Transaction Documents.
(u) Intentionally
Omitted.
(v) Investment
Company. The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the Securities, will not be
or be an Affiliate of, an “investment company” within the meaning of the Investment Company Act of 1940, as amended. The
Company shall conduct its business in a manner so that it will not become an “investment company” subject to registration
under the Investment Company Act of 1940, as amended.
(w) Registration
Rights. Except as set forth on Schedule 3.1(w), no Person has any right to cause the Company or any Subsidiary to effect the
registration under the Securities Act of any securities of the Company or any Subsidiary.
(x) Listing
and Maintenance Requirements. The Ordinary Shares are registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and the
Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration of the
Ordinary Shares under the Exchange Act nor has the Company received any notification that the Commission is contemplating terminating
such registration. Except as set forth on Schedule 3.1(x), the Company has not, in the twelve (12) months preceding the date hereof,
received notice from any Trading Market on which the Ordinary Shares are or have been listed or quoted to the effect that the Company
is not in compliance with the listing or maintenance requirements of such Trading Market. The Company is, and has no reason to believe
that it will not in the foreseeable future continue to be, in compliance with all such listing and maintenance requirements. The Ordinary
Shares are currently eligible for electronic transfer through the Depository Trust Company or another established clearing corporation
and the Company is current in payment of the fees to the Depository Trust Company (or such other established clearing corporation) in
connection with such electronic transfer.
(y) Application
of Takeover Protections. The Company and the Board of Directors have taken all necessary action, if any, in order to render inapplicable
any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar
anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents) or the laws of its state
of incorporation that is or could become applicable to the Purchasers as a result of the Purchasers and the Company fulfilling their
obligations or exercising their rights under the Transaction Documents, including without limitation as a result of the Company’s
issuance of the Securities and the Purchasers’ ownership of the Securities.
(z) Disclosure.
Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, the Company confirms
that neither it nor any other Person acting on its behalf has provided any of the Purchasers or their agents or counsel with any information
that it believes constitutes or might constitute material, non-public information which is not otherwise disclosed in the Prospectus
Supplement. The Company understands and confirms that the Purchasers will rely on the foregoing representation in effecting transactions
in securities of the Company. All of the disclosure furnished by or on behalf of the Company to the Purchasers regarding the Company
and its Subsidiaries, their respective businesses and the transactions contemplated hereby, including the Disclosure Schedules to this
Agreement, is true and correct and does not contain any untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. The press
releases disseminated by the Company during the twelve (12) months preceding the date of this Agreement taken as a whole do not contain
any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which they were made and when made, not misleading. The Company acknowledges
and agrees that no Purchaser makes or has made any representations or warranties with respect to the transactions contemplated hereby
other than those specifically set forth in Section 3.2 hereof.
(aa) No
Integrated Offering. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section 3.2, 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 this offering of the Securities
to be integrated with prior offerings by the Company for purposes of any applicable shareholder approval provisions of any Trading Market
on which any of the securities of the Company are listed or designated.
(bb) Solvency.
Based on the consolidated financial condition of the Company as of each Closing Date, after giving effect to the receipt by the Company
of the proceeds from the sale of the Securities 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 including its capital needs taking into account the particular capital requirements of
the business conducted by the Company, consolidated and projected capital requirements and capital availability thereof, and (iii) the
current cash flow of the Company, together with the proceeds the Company would receive, were it to liquidate all of its assets, after
taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in respect of its liabilities when
such amounts are required to be paid. The Company does not intend to incur debts beyond its ability to pay such debts as they mature
(taking into account the timing and amounts of cash to be payable on or in respect of its debt). 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 such Closing. Schedule 3.1(bb) sets forth as of the date hereof all outstanding
secured and unsecured Indebtedness of the Company or any Subsidiary, or for which the Company or any Subsidiary has commitments. For
the purposes of this Agreement, “Indebtedness” means (x) any liabilities for borrowed money or amounts owed in excess
of US$50,000 (other than trade accounts payable incurred in the ordinary course of business), (y) all guaranties, endorsements and other
contingent obligations in respect of indebtedness of others, whether or not the same are or should be reflected in the Company’s
consolidated balance sheet (or the notes thereto), except guaranties by endorsement of negotiable instruments for deposit or collection
or similar transactions in the ordinary course of business; and (z) the present value of any lease payments in excess of US$50,000 due
under leases required to be capitalized in accordance with GAAP. Neither the Company nor any Subsidiary is in default with respect to
any Indebtedness.
(cc) Tax
Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a Material
Adverse Effect, the Company and its Subsidiaries each (i) has made or filed all United States federal, state and local income and all
foreign income and franchise tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has paid
all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such returns,
reports and declarations and (iii) has set aside on its books provision reasonably adequate for the payment of all material taxes for
periods subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid taxes in any material amount
claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company or of any Subsidiary know of no basis
for any such claim.
(dd) Intentionally
Omitted.
(ee) Foreign
Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary, any agent or other
person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for unlawful contributions,
gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful payment to
foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate funds,
(iii) failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any person acting on its behalf of
which the Company is aware) which is in violation of law or (iv) violated in any material respect any provision of FCPA.
(ff) Accountants.
The Company’s accounting firm is set forth in the SEC Reports. To the knowledge and belief of the Company, such accounting firm
(i) is a registered public accounting firm as required by the Exchange Act and (ii) shall express its opinion with respect to the financial
statements to be included in the Company’s Annual Report for the fiscal year ended June 30, 2024.
(gg) Seniority.
As of each Closing Date, no Indebtedness or other claim against the Company is senior to the Notes in right of payment, whether with
respect to interest or upon liquidation or dissolution, or otherwise, other than indebtedness secured by purchase money security interests
(which is senior only as to underlying assets covered thereby) and capital lease obligations (which is senior only as to the property
covered thereby).
(hh) No
Disagreements with Accountants and Lawyers. There are no disagreements of any kind presently existing, or reasonably anticipated
by the Company to arise, between the Company and the accountants and lawyers formerly or presently employed by the Company and the Company
is current with respect to any fees owed to its accountants and lawyers which could affect the Company’s ability to perform any
of its obligations under any of the Transaction Documents.
(ii) Acknowledgment
Regarding Purchasers’ Purchase of Securities. The Company acknowledges and agrees that each of the Purchasers is acting solely
in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated thereby.
The Company further acknowledges that no Purchaser is acting as a financial advisor or fiduciary of the Company (or in any similar capacity)
with respect to the Transaction Documents and the transactions contemplated thereby and any advice given by any Purchaser or any of their
respective representatives or agents in connection with the Transaction Documents and the transactions contemplated thereby is merely
incidental to the Purchasers’ purchase of the Securities. The Company further represents to each Purchaser that the Company’s
decision to enter into this Agreement and the other Transaction Documents has been based solely on the independent evaluation of the
transactions contemplated hereby by the Company and its representatives.
(jj) Acknowledgment
Regarding Purchaser’s Trading Activity. Anything in this Agreement or elsewhere herein to the contrary notwithstanding (except
for Sections 3.2(g) and 4.14 hereof), it is understood and acknowledged by the Company that: (i) none of the Purchasers has been asked
by the Company to agree, nor has any Purchaser agreed, to desist from purchasing or selling, long and/or short, securities of the Company,
or “derivative” securities based on securities issued by the Company or to hold the Securities for any specified term; (ii)
past or future open market or other transactions by any Purchaser, specifically including, without limitation, Short Sales or “derivative”
transactions, before or after the closing of this or future private placement transactions, may negatively impact the market price of
the Company’s publicly-traded securities; (iii) any Purchaser, and counter-parties in “derivative” transactions to
which any such Purchaser is a party, directly or indirectly, presently may have a “short” position in the Ordinary Shares,
and (iv) each Purchaser shall not be deemed to have any affiliation with or control over any arm’s length counter-party in any
“derivative” transaction. The Company further understands and acknowledges that (y) one or more Purchasers may engage in
hedging activities at various times during the period that the Securities are outstanding, including, without limitation, during the
periods that the value of the Underlying Shares deliverable with respect to Securities are being determined, and (z) such hedging activities
(if any) could reduce the value of the existing shareholders’ equity interests in the Company at and after the time that the hedging
activities are being conducted. The Company acknowledges that such aforementioned hedging activities do not constitute a breach
of any of the Transaction Documents.
(kk) Regulation
M Compliance. The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly or indirectly,
any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of any of the Securities, (ii) sold, bid for, purchased, or paid any compensation for soliciting purchases of, any
of the Securities, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities
of the Company, other than, in the case of clauses (ii) and (iii), compensation paid to the Placement Agent in connection with the placement
of the Securities.
(ll) Foreign
Private Issuer. The Company is a “foreign private issuer” as defined in Rule 405 promulgated under the Securities Act.
(mm) Share
Option Plans. Each share option granted by the Company under the Company’s share option plan was granted (i) in accordance
with the terms of the Company’s share option plan and (ii) with an exercise price at least equal to the fair market value of the
Ordinary Shares on the date such share option would be considered granted under GAAP and applicable law. No share option granted under
the Company’s share option plan has been backdated. The Company has not knowingly granted, and there is no and has been no Company
policy or practice to knowingly grant, share options prior to, or otherwise knowingly coordinate the grant of share options with, the
release or other public announcement of material information regarding the Company or its Subsidiaries or their financial results or
prospects.
(nn) 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.
(oo) Compliance
with Data Privacy Laws. (i) The Company and the Subsidiaries are, and at all times during the last three (3) years were, in
compliance with all applicable state, federal and foreign data privacy and security laws and regulations (collectively, “Privacy
Laws”); (ii) the Company and the Subsidiaries have in place, comply with, and take appropriate steps reasonably designed
to ensure compliance with their policies and procedures relating to data privacy and security and the collection, storage, use, disclosure,
handling and analysis of Personal Data (as defined below) (the “Policies”); (iii) the Company provides accurate
notice of its applicable Policies to its customers, employees, third party vendors and representatives as required by the Privacy Laws;
and (iv) applicable Policies provide accurate and sufficient notice of the Company’s then-current privacy practices relating
to its subject matter, and do not contain any material omissions of the Company’s then-current privacy practices, as required by
Privacy Laws. “Personal Data” means (i) a natural person’s name, street address, telephone number,
email address, photograph, social security number, bank information, or customer or account number; (ii) any information which would
qualify as “personally identifying information” under the Federal Trade Commission Act, as amended; and (iii) any other
piece of information that allows the identification of such natural person, or his or her family, or permits the collection or analysis
of any identifiable data related to an identified person’s health or sexual orientation. (i) None of such disclosures made
or contained in any of the Policies have been inaccurate, misleading, or deceptive in violation of any Privacy Laws and (ii) the
execution, delivery and performance of the Transaction Documents will not result in a breach of any Privacy Laws or Policies. Neither
the Company nor the Subsidiaries (i) to the knowledge of the Company, has received written notice of any actual or potential liability
of the Company or the Subsidiaries under, or actual or potential violation by the Company or the Subsidiaries of, any of the Privacy
Laws; (ii) is currently conducting or paying for, in whole or in part, any investigation, remediation or other corrective action
pursuant to any regulatory request or demand pursuant to any Privacy Law; or (iii) is a party to any order, decree, or agreement
by or with any court or arbitrator or governmental or regulatory authority that imposed any obligation or liability under any Privacy
Law.
(pp) Office
of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company’s knowledge, any director, officer, agent,
employee or affiliate of the Company or any Subsidiary is currently subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department (“OFAC”).
(qq) (pp) 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 Purchaser’s request.
(rr) 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 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.
(ss) Money
Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with applicable
financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, applicable
money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money Laundering Laws”),
and no Action or Proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company
or any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge of the Company or any Subsidiary, threatened.
3.2 Representations
and Warranties of the Purchasers. Each Purchaser, for itself and for no other Purchaser, hereby represents and warrants as of the
date hereof and as of each Closing Date to the Company as follows (unless as of a specific date therein, in which case they shall be
accurate as of such date):
(a) Organization;
Authority. Such Purchaser is either an individual or an entity duly incorporated or formed, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership, limited liability company
or similar power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents and otherwise
to carry out its obligations hereunder and thereunder. The execution and delivery of the Transaction Documents and performance by such
Purchaser of the transactions contemplated by the Transaction Documents have been duly authorized by all necessary corporate, partnership,
limited liability company or similar action, as applicable, on the part of such Purchaser. Each Transaction Document to which it is a
party has been duly executed by such Purchaser, and when delivered by such Purchaser in accordance with the terms hereof, will constitute
the valid and legally binding obligation of such Purchaser, enforceable against it in accordance with its terms, except (i) as limited
by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable
law.
(b) Understandings
or Arrangements. Such Purchaser is acquiring the Securities as principal for its own account and has no direct or indirect arrangement
or understandings with any other persons to distribute or regarding the distribution of such Securities (this representation and warranty
not limiting such Purchaser’s right to sell the Securities pursuant to the Registration Statement or otherwise in compliance with
applicable federal and state securities laws). Such Purchaser is acquiring the Securities hereunder in the ordinary course of its business.
(c) Purchaser
Status. At the time such Purchaser was offered the Securities, it was, and as of the date hereof it is, and on each date on which
it exercises its Warrant, converts its Note into Conversion Shares or is issued any Conversion Shares under the terms of its Note, it
will be either: (i) an “accredited investor” as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7), (a)(8), (a)(9), (a)(12)
or (a)(13) under the Securities Act or (ii) a “qualified institutional buyer” as defined in Rule 144A(a) under the Securities
Act.
(d) Experience
of Such Purchaser. Such Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience
in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Securities,
and has so evaluated the merits and risks of such investment. Such Purchaser is able to bear the economic risk of an investment in the
Securities and, at the present time, is able to afford a complete loss of such investment.
(e) Intentionally
Omitted.
(f) Access
to Information. Such Purchaser acknowledges that it has had the opportunity to review the Transaction Documents (including all exhibits
and schedules thereto) and the SEC Reports and has been afforded, (i) the opportunity to ask such questions as it has deemed necessary
of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering of the Securities
and the merits and risks of investing in the Securities; (ii) access to information about the Company and its financial condition, results
of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity
to obtain such additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary
to make an informed investment decision with respect to the investment. Such Purchaser acknowledges and agrees that neither the Placement
Agent nor any Affiliate of the Placement Agent has provided such Purchaser with any information or advice with respect to the Securities
nor is such information or advice necessary or desired. Neither the Placement Agent nor any Affiliate has made or makes any representation
as to the Company or the quality of the Securities and the Placement Agent and any Affiliate may have acquired non-public information
with respect to the Company which such Purchaser agrees need not be provided to it. In connection with the issuance of the Securities
to such Purchaser, neither the Placement Agent nor any of its Affiliates has acted as a financial advisor or fiduciary to such Purchaser.
(g) Certain
Transactions and Confidentiality. Other than consummating the transactions contemplated hereunder, such Purchaser has not, nor has
any Person acting on behalf of or pursuant to any understanding with such Purchaser, directly or indirectly executed any purchases or
sales, including Short Sales, of the securities of the Company during the period commencing as of the time that such Purchaser first
received a term sheet (written or oral) from the Company or any other Person representing the Company setting forth the material terms
of the transactions contemplated hereunder and ending immediately prior to the execution hereof. Notwithstanding the foregoing, in the
case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s
assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other
portions of such Purchaser’s assets, the representation set forth above shall only apply with respect to the portion of assets
managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement. Other than to
other Persons party to this Agreement or to such Purchaser’s representatives, including, without limitation, its officers, directors,
partners, legal and other advisors, employees, agents and Affiliates, such Purchaser has maintained the confidentiality of all disclosures
made to it in connection with this transaction (including the existence and terms of this transaction). Notwithstanding the foregoing,
for the avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect
to locating or borrowing shares in order to effect Short Sales or similar transactions in the future.
The
Company acknowledges and agrees that the representations contained in this Section 3.2 shall not modify, amend or affect such Purchaser’s
right to rely on the Company’s representations and warranties contained in this Agreement or any representations and warranties
contained in any other Transaction Document or any other document or instrument executed and/or delivered in connection with this Agreement
or the consummation of the transactions contemplated hereby. Notwithstanding the foregoing, for the avoidance of doubt, nothing contained
herein shall constitute a representation or warranty, or preclude any actions, with respect to locating or borrowing shares in order
to effect Short Sales or similar transactions in the future.
ARTICLE
IV.
OTHER AGREEMENTS OF THE PARTIES
4.1 Underlying
Shares. If all or any portion of a Note is converted or a Warrant is exercised at a time when there is an effective registration
statement to cover the issuance or resale of the applicable Underlying Shares or if the Warrant is exercised via cashless exercise, such
Underlying Shares issued pursuant to any such conversion or exercise shall be issued free of all legends. If at any time following the
date hereof the Registration Statement (or any subsequent registration statement registering the sale or resale of the Underlying Shares)
is not effective or is not otherwise available for the sale or resale of the Underlying Shares, the Company shall immediately notify
the holders of the Notes and/or Warrants in writing that such registration statement is not then effective and thereafter shall promptly
notify such holders when the registration statement is effective again and available for the sale or resale of the Underlying Shares
(it being understood and agreed that the foregoing shall not limit the ability of the Company to issue, or any Purchaser to sell, any
of the Underlying Shares in compliance with applicable federal and state securities laws). The Company shall use best efforts to keep
a registration statement (including the Registration Statement) registering the issuance or resale of the Underlying Shares effective
during the term of the Notes and Warrants.
4.2 Acknowledgment
of Dilution. The Company acknowledges that the issuance of the Securities may result in dilution of the outstanding Ordinary Shares,
which dilution may be substantial under certain market conditions. The Company further acknowledges that its obligations under the Transaction
Documents, including, without limitation, its obligation to issue the Underlying Shares pursuant to the Transaction Documents, are unconditional
and absolute and not subject to any right of set off, counterclaim, delay or reduction, regardless of the effect of any such dilution
or any claim the Company may have against any Purchaser and regardless of the dilutive effect that such issuance may have on the ownership
of the other stockholders of the Company.
4.3 Furnishing
of Information.
(a) Until
the earliest of the time that (i) no Purchaser owns Securities or (ii) the Warrants have expired, the Company covenants to maintain the
registration of the Ordinary Shares under Section 12(b) or 12(g) of the Exchange Act and to timely file (or obtain extensions in respect
thereof and file within the applicable grace period) all reports required to be filed by the Company after the date hereof pursuant to
the Exchange Act even if the Company is not then subject to the reporting requirements of the Exchange Act.
4.4 Integration.
The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in
Section 2 of the Securities Act) that would be integrated with the offer or sale of the Securities for purposes of the rules and regulations
of any Trading Market such that it would require shareholder approval prior to the closing of such other transaction unless shareholder
approval is obtained before the closing of such subsequent transaction.
4.5 Conversion
and Exercise Procedures. Each of the form of Notice of Exercise included in the Warrants and the form of Notice of Conversion included
in the Notes set forth the totality of the procedures required of the Purchasers in order to exercise the Warrants or convert the Notes.
Without limiting the preceding sentences, no ink-original Notice of Exercise or Notice of Conversion shall be required, nor shall any
medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise or Notice of Conversion form be required in
order to exercise the Warrants or convert the Notes. No additional legal opinion, other information or instructions shall be required
of the Purchasers to exercise their Warrants or convert their Notes. The Company shall honor exercises of the Warrants and conversions
of the Notes and shall deliver Underlying Shares in accordance with the terms, conditions and time periods set forth in the Transaction
Documents.
4.6 Securities
Laws Disclosure; Publicity. The Company shall (a) by the Disclosure Time, issue a press release disclosing the material terms of
the transactions contemplated hereby, and (b) file a Current Report on Form 6-K, including the Transaction Documents as exhibits thereto,
with the Commission by 9:00am Eastern Time the next Business Day following the execution of this Agreement. From and after the issuance
of such press release, the Company represents to the Purchasers that it shall have publicly disclosed all material, non-public information
delivered to any of the Purchasers by the Company or any of its Subsidiaries, or any of their respective officers, directors, employees
or agents, including, without limitation, the Placement Agent, in connection with the transactions contemplated by the Transaction Documents.
In addition, effective upon the issuance of such press release, the Company acknowledges and agrees that any and all confidentiality
or similar obligations under any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their respective
officers, directors, agents, employees, Affiliates or agents, including, without limitation, the Placement Agent, on the one hand, and
any of the Purchasers or any of their Affiliates on the other hand, shall terminate. The Company and each Purchaser shall consult with
each other in issuing any other press releases with respect to the transactions contemplated hereby, and neither the Company nor any
Purchaser shall issue any such press release nor otherwise make any such public statement without the prior consent of the Company, with
respect to any press release of any Purchaser, or without the prior consent of each Purchaser, with respect to any press release of the
Company, which consent shall not unreasonably be withheld or delayed, except if such disclosure is required by law, in which case the
disclosing party shall promptly provide the other party with prior notice of such public statement or communication. Notwithstanding
the foregoing, the Company shall not publicly disclose the name of any Purchaser, or include the name of any Purchaser in any filing
with the Commission or any regulatory agency or Trading Market, without the prior written consent of such Purchaser, except (a) as required
by federal securities law in connection with (i) any Registration Statement contemplated herein and (ii) the filing of final Transaction
Documents with the Commission and (b) to the extent such disclosure is required by law or Trading Market regulations, in which case the
Company shall provide the Purchasers with prior notice of such disclosure permitted under this clause (b).
4.7 Shareholder
Rights Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any other Person, that any Purchaser
is an “Acquiring Person” under any control share acquisition, business combination, poison pill (including any distribution
under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter adopted by the Company, or that any Purchaser
could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receiving Securities under the Transaction Documents
or under any other agreement between the Company and the Purchasers.
4.8 Non-Public
Information. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents,
which shall be disclosed pursuant to Section 4.6, the Company covenants and agrees that neither it, nor any other Person acting on its
behalf will provide any Purchaser or its agents or counsel with any information that constitutes, or the Company reasonably believes
constitutes, material non-public information, unless prior thereto such Purchaser shall have consented to the receipt of such information
and agreed with the Company to keep such information confidential. The Company understands and confirms that each Purchaser shall be
relying on the foregoing covenant in effecting transactions in securities of the Company. To the extent that the Company, any of its
Subsidiaries, or any of their respective officers, director, agents, employees or Affiliates delivers any material, non-public information
to a Purchaser without such Purchaser’s consent, the Company hereby covenants and agrees that such Purchaser shall not have any
duty of confidentiality to the Company, any of its Subsidiaries, or any of their respective officers, directors, agents, employees or
Affiliates, or a duty to the Company, any of its Subsidiaries or any of their respective officers, directors, agents, employees or Affiliates
not to trade on the basis of, such material, non-public information, provided that the Purchaser shall remain subject to applicable law.
To the extent that any notice provided pursuant to any Transaction Document constitutes, or contains, material, non-public information
regarding the Company or any Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current
Report on Form 6-K. The Company understands and confirms that each Purchaser shall be relying on the foregoing covenant in effecting
transactions in securities of the Company.
4.9 Use
of Proceeds. Except as set forth on Schedule 4.9, the Company shall use the net proceeds from the sale of the Securities hereunder
for working capital purposes and shall not use such proceeds: (a) for the satisfaction of any portion of the Company’s debt (other
than payment of trade payables in the ordinary course of the Company’s business and prior practices); (b) for the redemption of
any Ordinary Shares or Ordinary Share Equivalents; (c) for the settlement of any outstanding litigation; or (d) in violation of FCPA
or OFAC regulations.
4.10 Indemnification
of Purchasers. Subject to the provisions of this Section 4.10, the Company will indemnify and hold each Purchaser and its directors,
officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally equivalent role of a Person
holding such titles notwithstanding a lack of such title or any other title), each Person who controls such Purchaser (within the meaning
of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders, agents, members,
partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack
of such title or any other title) of such controlling persons (each, a “Purchaser Party”) harmless from any and all
losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements,
court costs and reasonable attorneys’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result
of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement
or in the other Transaction Documents or (b) any action instituted against the Purchaser Parties in any capacity, or any of them or their
respective Affiliates, by any shareholder of the Company who is not an Affiliate of such Purchaser Party, with respect to any of the
transactions contemplated by the Transaction Documents (unless such action is solely based upon a material breach of such Purchaser Party’s
representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may
have with any such shareholder or any violations by such Purchaser Party of state or federal securities laws or any conduct by such Purchaser
Party which is finally judicially determined to constitute fraud, gross negligence or willful misconduct). If any action shall be brought
against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly
notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably
acceptable to the Purchaser Party. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate
in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent
that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable
period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of counsel a
material conflict on any material issue between the position of the Company and the position of such Purchaser Party, in which case the
Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will not be
liable to any Purchaser Party under this Agreement (y) for any settlement by a Purchaser Party effected without the Company’s prior
written consent, which shall not be unreasonably withheld or delayed; or (z) to the extent, but only to the extent that a loss, claim,
damage or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants or agreements
made by such Purchaser Party in this Agreement or in the other Transaction Documents. The indemnification required by this Section 4.10
shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received
or are incurred. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of any Purchaser
Party against the Company or others and any liabilities the Company may be subject to pursuant to law.
4.11 Participation
in Future Financing.
(a) From
the date hereof until the twelve (12)-month anniversary of the date on which the Notes are no longer outstanding, upon any issuance by
the Company or any of its Subsidiaries of Ordinary Shares or Ordinary Share Equivalents for cash consideration, Indebtedness or a combination
of units thereof (a “Subsequent Financing”), the Purchasers altogether shall have the right to participate in up to
an amount of the Subsequent Financing equal to 50% of the Subsequent Financing (the “Participation Maximum”) on the
same terms, conditions and price provided for in the Subsequent Financing.
(b) At
least two (2) Trading Days prior to the closing of the Subsequent Financing, the Company shall deliver to each Purchaser a written notice
of its intention to effect a Subsequent Financing (“Pre-Notice”), which Pre-Notice shall ask such Purchaser if it
wants to review the details of such financing (such additional notice, a “Subsequent Financing Notice”). Upon the
request of a Purchaser, and only upon a request by such Purchaser, for a Subsequent Financing Notice, the Company shall promptly, but
no later than one (1) Trading Day after such request, deliver a Subsequent Financing Notice to such Purchaser. The Subsequent Financing
Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised
thereunder and the Person or Persons through or with whom such Subsequent Financing is proposed to be effected and shall include a term
sheet or similar document relating thereto as an attachment.
(c) Any
Purchaser desiring to participate in such Subsequent Financing must provide written notice to the Company by not later than 5:30 p.m.
(New York City time) on the second (2nd) Trading Day after all of the Purchasers have received the Pre-Notice that such Purchaser
is willing to participate in the Subsequent Financing, the amount of such Purchaser’s participation, and representing and warranting
that such Purchaser has such funds ready, willing, and available for investment on the terms set forth in the Subsequent Financing Notice.
If the Company receives no such notice from a Purchaser as of such second (2nd) Trading Day, such Purchaser shall be deemed
to have notified the Company that it does not elect to participate.
(d) If
by 5:30 p.m. (New York City time) on the second (2nd ) Trading Day after all of the Purchasers have received the Pre-Notice,
notifications by the Purchasers of their willingness to participate in the Subsequent Financing (or to cause their designees to participate)
is, in the aggregate, less than the total amount of the Subsequent Financing, then the Company may effect the remaining portion of such
Subsequent Financing on the terms and with the Persons set forth in the Subsequent Financing Notice.
e)
If by 5:30 p.m. (New York City time) on the second (2nd) Trading Day after all of the Purchasers have received the Pre-Notice,
the Company receives responses to a Subsequent Financing Notice from Purchasers seeking to purchase more than the aggregate amount of
the Participation Maximum, each such Purchaser shall have the right to purchase its Pro Rata Portion (as defined below) of the Participation
Maximum. “Pro Rata Portion” means the ratio of (x) the Subscription Amount of Securities purchased on the Closing
Dates by a Purchaser participating under this Section 4.11 and (y) the sum of the aggregate Subscription Amounts of Securities purchased
on the Closing Dates by all Purchasers participating under this Section 4.11.
(e) The
Company must provide the Purchasers with a second Subsequent Financing Notice, and the Purchasers will again have the right of participation
set forth above in this Section 4.11, if the Subsequent Financing subject to the initial Subsequent Financing Notice is not consummated
for any reason on the terms set forth in such Subsequent Financing Notice within thirty (30) Trading Days after the date of the initial
Subsequent Financing Notice.
(f) The
Company and each Purchaser agree that if any Purchaser elects to participate in the Subsequent Financing, the transaction documents related
to the Subsequent Financing shall not include any term or provision that, directly or indirectly, will, or is intended to, exclude one
or more of the Purchasers from participating in a Subsequent Financing, including, but not limited to, provisions whereby such Purchaser
shall be required to agree to any restrictions on trading as to any of the Securities purchased hereunder or be required to consent to
any amendment to or termination of, or grant any waiver, release or the like under or in connection with, this Agreement, without the
prior written consent of such Purchaser.
(g) Notwithstanding
anything to the contrary in this Section 4.11 and unless otherwise agreed to by such Purchaser, the Company shall either confirm in writing
to such Purchaser that the transaction with respect to the Subsequent Financing has been abandoned or shall publicly disclose its intention
to issue the securities in the Subsequent Financing, in either case in such a manner such that such Purchaser will not be in possession
of any material, non-public information, by the tenth (10th) Business Day following delivery of the Subsequent Financing Notice. If by
such tenth (10th) Business Day, no public disclosure regarding a transaction with respect to the Subsequent Financing has been made,
and no notice regarding the abandonment of such transaction has been received by such Purchaser, such transaction shall be deemed to
have been abandoned and such Purchaser shall not be deemed to be in possession of any material, non-public information with respect to
the Company or any of its Subsidiaries.
(h) Notwithstanding
the foregoing, this Section 4.11 shall not apply in respect of an Exempt Issuance.
4.12 Subsequent
Equity Sales.
(a) From
(A) the date hereof until forty-five (45) calendar days after the First Closing Date, and (B) during the period commencing on each Additional
Closing Date until the fifteenth (15th) Trading Day thereafter, neither the Company nor any Subsidiary shall (i) issue, enter
into any agreement to issue or announce the issuance or proposed issuance of any shares of Ordinary Shares or Ordinary Share Equivalents
or (ii) file any registration statement or any amendment or supplement thereto, other than the Prospectus Supplement; provided however,
that the limitation on issuances described in this Section 4.12(a) shall not apply in the event that the closing price per Ordinary Share
on the Principal Market on the Trading Day prior to such potential issuance exceeds the product of (x) the Fixed Conversion Price and
(y) 2.
(b) From
the date hereof until such time as no Purchaser holds any of the Notes or the Warrants, the Company shall be prohibited from effecting
or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of Ordinary Shares or Ordinary Share Equivalents
(or a combination of units thereof) involving a Variable Rate Transaction. “Variable Rate Transaction” means a transaction
in which the Company (i) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or
include the right to receive, additional Ordinary Shares either (A) at a conversion price, exercise price or exchange rate or other price
that is based upon, and/or varies with, the trading prices of or quotations for the Ordinary Shares at any time after the initial issuance
of such debt or equity securities or (B) with a conversion, exercise or exchange price that is subject to being reset at some future
date after the initial issuance of such debt or equity security or upon the occurrence of specified or contingent events directly or
indirectly related to the business of the Company or the market for the Ordinary Shares or (ii) enters into, or effects a transaction
under, any agreement, including, but not limited to, an equity line of credit, whereby the Company may issue securities at a future determined
price. Any Purchaser shall be entitled to obtain injunctive relief against the Company to preclude any such issuance, which remedy shall
be in addition to any right to collect damages.
(c) Reserved.
(d) From
the date hereof until such time as no Purchaser holds any of the Notes, the Company shall not incur any Indebtedness in an amount equal
to or greater than US$100,000 other than for which such proceeds received from such Indebtedness are used to repay the Notes in full.
(e) Notwithstanding
the foregoing, this Section 4.12 shall not apply in respect of an Exempt Issuance, except that no Variable Rate Transaction shall be
an Exempt Issuance.
4.13 Equal
Treatment of Purchasers. No consideration (including any modification of any Transaction Document) shall be offered or paid to any
Person to amend or consent to a waiver or modification of any provision of the Transaction Documents unless the same consideration is
also offered to all of the parties to such Transaction Documents. Further, the Company shall not make any payment of principal or interest
on the Notes in amounts which are disproportionate to the respective principal amounts outstanding on the Notes at any applicable time.
For clarification purposes, this provision constitutes a separate right granted to each Purchaser by the Company and negotiated separately
by each Purchaser and is intended for the Company to treat the Purchasers as a class and shall not in any way be construed as the Purchasers
acting in concert or as a group with respect to the purchase, disposition or voting of Securities or otherwise.
4.14 Certain
Transactions and Confidentiality. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it,
nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or sales, including Short
Sales, of any of the Company’s securities during the period commencing with the execution of this Agreement and ending at such
time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described
in Section 4.6. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions
contemplated by this Agreement are publicly disclosed by the Company pursuant to the initial press release as described in Section 4.6,
such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Disclosure
Schedules. Notwithstanding the foregoing, and notwithstanding anything contained in this Agreement to the contrary, the Company expressly
acknowledges and agrees that (i) no Purchaser makes any representation, warranty or covenant hereby that it will not engage in effecting
transactions in any securities of the Company after the time that the transactions contemplated by this Agreement are first publicly
announced pursuant to the initial press release as described in Section 4.6, (ii) no Purchaser shall be restricted or prohibited from
effecting any transactions in any securities of the Company in accordance with applicable securities laws from and after the time that
the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section
4.6 and (iii) no Purchaser shall have any duty of confidentiality or duty not to trade in the securities of the Company to the Company
or its Subsidiaries after the issuance of the initial press release as described in Section 4.6. Notwithstanding the foregoing,
in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of
such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers
managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of
assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.
4.15 Reservation
of Ordinary Shares. As of the date hereof, the Company has reserved and the Company shall continue to reserve and keep available
at all times, free of preemptive rights, a sufficient number of Ordinary Shares for the purpose of enabling the Company to issue Underlying
Shares pursuant to this Agreement, the Notes and the Warrants.
4.16 Capital
Changes. Until the one (1) year anniversary from the date of this Agreement, the Company shall not undertake a reverse or forward
stock split or reclassification of the Ordinary Shares without the prior written consent of Purchasers except as may be required to meet
any exchange requirement for continued listing.
4.17 Subsequent
Debt. Subject to Section 4.12, neither the Company nor any Subsidiary shall without the prior written consent of Purchasers, which
consent will not be unreasonably withheld, incur any Indebtedness equal to or greater than US$100,000 or enter into any agreement to
incur or announce to incur any Indebtedness equal to or greater than US$100,000, in each case, other than for which such proceeds received
from such Indebtedness are used to repay the Notes in full, provided, that with respect to any Subsidiary that is not wholly-owned or
majority-owned by the Company, such consent will not be required.
4.18 Repayment
of Notes. Subject to Section 4.12 and Section 4.13, for so long as the Notes remain outstanding, in the event that the Company receives
proceeds from any one or more Subsequent Financings, then, at each Purchaser’s option it may demand that thirty percent (30%) of
such proceeds be used to repay the outstanding balance of such Purchaser’s Note with a 105% premium, on a pro rata basis. In such
event, such repayment shall be applied in the following order: (i) first, to Late Fees (as defined in the Notes); (ii) second, to liquidated
damages; (iii) third, to accrued but unpaid interest; and (iv) fourth, to unpaid principal amounts. This Section 4.18 shall also be subject
to Section 6 of the Notes.
4.19 Related
Party Transactions. So long as the Notes remain outstanding, neither the Company nor any Subsidiary shall without the prior written
consent of Purchasers (which consent shall not unreasonably be withheld or delayed) enter into any transaction with a Related Party or
an Affiliate, other than as has been previously entered into with related parties with whom the Company normally conducts business and
as has been previously disclosed in the Company’s filings with the Commission; provided that no such consent shall be required
with respect to any compensation to be issued to any employee, executive or director of the Company or any Subsidiary (including the
issuance of any Ordinary Shares or Ordinary Share Equivalents in an Exempt Issuance) and so long as such compensation is approved by
majority of the members of the compensation committee of the Company.
4.20 Lock-Up
Agreements. The Company shall not amend, modify, waive or terminate any provision of any of the Lock-Up Agreements except to extend
the term of the lock-up period and shall enforce the provisions of each Lock-Up Agreement in accordance with its terms. If any party
to a Lock-Up Agreement breaches any provision of a Lock-Up Agreement, the Company shall promptly use its best efforts to seek specific
performance of the terms of such Lock-Up Agreement.
ARTICLE
V.
MISCELLANEOUS
5.1 Termination.
This Agreement may be terminated by any Purchaser, as to such Purchaser’s obligations hereunder only and without any effect whatsoever
on the obligations between the Company and the other Purchasers, by written notice to the other parties, if the First Closing has not
been consummated on or before the fifth (5th) Trading Day following the date hereof, provided, however,
that no such termination will affect the right of any party to sue for any breach by any other party (or parties).
5.2 Fees
and Expenses. Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay the fees and expenses
of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation,
preparation, execution, delivery and performance of this Agreement. The Company shall pay all Transfer Agent fees (including, without
limitation, any fees required for same-day processing of any instruction letter delivered by the Company and any conversion or exercise
notice delivered by a Purchaser), stamp taxes and other taxes and duties levied in connection with the delivery of any Securities to
the Purchasers.
5.3 Entire
Agreement. The Transaction Documents, together with the exhibits and schedules thereto, the Prospectus and the Prospectus Supplement
contain the entire understanding of the parties with respect to the subject matter hereof and thereof and supersede all prior agreements
and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents,
exhibits and schedules.
5.4 Notices.
Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall
be deemed given and effective on the earliest of: (a) the time of transmission, if such notice or communication is delivered via email
attachment at the email address as set forth on the signature pages attached hereto at or prior to 5:30 p.m. (New York City time) on
a Trading Day, (b) the next Trading Day after the time of transmission, if such notice or communication is delivered via email attachment
at the email address as set forth on the signature pages attached hereto on a day that is not a Trading Day or later than 5:30 p.m. (New
York City time) on any Trading Day, (c) the second (2nd) Trading Day following the date of mailing, if sent by U.S. nationally
recognized overnight courier service or (d) upon actual receipt by the party to whom such notice is required to be given. The address
for such notices and communications shall be as set forth on the signature pages attached hereto.
5.5 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 Purchaser/Purchasers which purchased at least 50.1% in interest of the Notes based on the
initial Subscription Amounts (including any Additional Closing, if applicable) hereunder or, in the case of a waiver, by the party against
whom enforcement of any such waived provision is sought, provided that if any amendment or modification treats a Purchaser (or group
of Purchasers) in a manner that is different than other Purchasers, the consent of such disproportionately impacted Purchaser (or group
of Purchasers) shall also be required. 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. Any proposed amendment or waiver that disproportionately, materially and adversely affects the rights and obligations
of any Purchaser relative to the comparable rights and obligations of the other Purchasers shall require the prior written consent of
such adversely affected Purchaser. Any amendment effected in accordance with this Section 5.5 shall be binding upon each Purchaser and
holder of Securities and the Company.
5.6 Headings.
The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any
of the provisions hereof.
5.7 Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns.
The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent of each Purchaser
(other than by merger). Any Purchaser may assign any or all of its rights under this Agreement to any Person to whom such Purchaser assigns
or transfers any Securities, provided that such transferee agrees in writing to be bound, with respect to the transferred Securities,
by the provisions of the Transaction Documents that apply to the “Purchasers.”
5.8 No
Third-Party Beneficiaries. The Placement Agent shall be the third party beneficiary of the representations, warranties, and covenants
of the Company in this Agreement and the representations, warranties, and covenants of the Purchasers in this Agreement. This Agreement
is intended for the benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of,
nor may any provision hereof be enforced by, any other Person, except as otherwise set forth in Section 4.10 and this Section 5.8.
5.9 Intentionally
Omitted.
5.10 Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall be governed
by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts
of law thereof. Each party agrees that all legal Proceedings concerning the interpretations, enforcement and defense of the transactions
contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto or its respective affiliates,
directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts
sitting in the City of New York. Each party hereby irrevocably submits to the 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 herewith or with
any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents),
and hereby irrevocably waives, and agrees not to assert in any Action or Proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such Action or Proceeding is improper or is an inconvenient venue for such Proceeding. Each party
hereby irrevocably waives personal service of process and consents to process being served in any such Action or Proceeding by mailing
a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect
for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law.
If any party shall commence an Action or Proceeding to enforce any provisions of the Transaction Documents, then, in addition to the
obligations of the Company under Section 4.10, the prevailing party in such Action or Proceeding shall be reimbursed by the non-prevailing
party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution
of such Action or Proceeding.
5.11 Survival.
The representations and warranties contained herein shall survive the Closing and the delivery of the Securities.
5.12 Execution.
This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party and delivered to each other party, it being understood that
the parties need not sign the same counterpart. In the event that any signature is delivered by e-mail delivery of a “.pdf”
format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature
is executed) with the same force and effect as if such “.pdf” signature page were an original thereof.
5.13 Severability.
If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force
and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts
to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
5.14 Rescission
and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) any
of the other Transaction Documents, whenever any Purchaser exercises a right, election, demand or option under a Transaction Document
and the Company does not timely perform its related obligations within the periods therein provided, then such Purchaser may rescind
or withdraw, in its sole discretion from time to time upon written notice to the Company, any relevant notice, demand or election in
whole or in part without prejudice to its future actions and rights; provided, however, that, in the case of
a rescission of a conversion of a Note or exercise of a Warrant, the applicable Purchaser shall be required to return any Ordinary Shares
subject to any such rescinded conversion or exercise notice concurrently with the return to such Purchaser of the aggregate exercise
price paid to the Company for such shares and the restoration of such Purchaser’s right to acquire such shares pursuant to such
Purchaser’s Warrant (including, issuance of a replacement warrant certificate evidencing such restored right).
5.15 Replacement
of Securities. If any certificate or instrument evidencing any Securities is mutilated, lost, stolen or destroyed, the Company shall
issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation), or in lieu of
and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to the Company
of such loss, theft or destruction. The applicant for a new certificate or instrument under such circumstances shall also pay any reasonable
third-party costs (including customary indemnity) associated with the issuance of such replacement Securities.
5.16 Remedies.
In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of the Purchasers
and the Company will be entitled to specific performance under the Transaction Documents. The parties agree that monetary damages may
not be adequate compensation for any loss incurred by reason of any breach of obligations contained in the Transaction Documents and
hereby agree to waive and not to assert in any Action for specific performance of any such obligation the defense that a remedy at law
would be adequate.
5.17 Payment
Set Aside. To the extent that the Company makes a payment or payments to any Purchaser pursuant to any Transaction Document or a
Purchaser enforces or exercises its rights thereunder, and such payment or payments or the proceeds of such enforcement or exercise or
any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from, disgorged by or
are required to be refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other Person under any law (including,
without limitation, any bankruptcy law, state or federal law, common law or equitable cause of action), then to the extent of any such
restoration the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such enforcement or setoff had not occurred.
5.18 Usury.
To the extent it may lawfully do so, the Company hereby agrees not to insist upon or plead or in any manner whatsoever claim, and will
resist any and all efforts to be compelled to take the benefit or advantage of, usury laws wherever enacted, now or at any time hereafter
in force, in connection with any Action or Proceeding that may be brought by any Purchaser in order to enforce any right or remedy under
any Transaction Document. Notwithstanding any provision to the contrary contained in any Transaction Document, it is expressly agreed
and provided that the total liability of the Company under the Transaction Documents for payments in the nature of interest shall not
exceed the maximum lawful rate authorized under applicable law (the “Maximum Rate”), and, without limiting the foregoing,
in no event shall any rate of interest or default interest, or both of them, when aggregated with any other sums in the nature of interest
that the Company may be obligated to pay under the Transaction Documents exceed such Maximum Rate. It is agreed that if the maximum contract
rate of interest allowed by law and applicable to the Transaction Documents is increased or decreased by statute or any official governmental
action subsequent to the date hereof, the new maximum contract rate of interest allowed by law will be the Maximum Rate applicable to
the Transaction Documents from the effective date thereof forward, unless such application is precluded by applicable law. If under any
circumstances whatsoever, interest in excess of the Maximum Rate is paid by the Company to any Purchaser with respect to indebtedness
evidenced by the Transaction Documents, such excess shall be applied by such Purchaser to the unpaid principal balance of any such indebtedness
or be refunded to the Company, the manner of handling such excess to be at such Purchaser’s election.
5.19 Independent
Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser under any Transaction Document are several
and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance or non-performance
of the obligations of any other Purchaser under any Transaction Document. Nothing contained herein or in any other Transaction Document,
and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to constitute the Purchasers as a partnership, an association,
a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way acting in concert or as a group
with respect to such obligations or the transactions contemplated by the Transaction Documents. Each Purchaser shall be entitled to independently
protect and enforce its rights, including, without limitation, the rights arising out of this Agreement or out of the other Transaction
Documents, and it shall not be necessary for any other Purchaser to be joined as an additional party in any Proceeding for such purpose.
Each Purchaser has been represented by its own separate legal counsel in its review and negotiation of the Transaction Documents. For
reasons of administrative convenience only, each Purchaser and its respective counsel have chosen to communicate with the Company through
EGS. EGS does not represent any of the Purchasers and only represents the Placement Agent. The Company has elected to provide all Purchasers
with the same terms and Transaction Documents for the convenience of the Company and not because it was required or requested to do so
by any of the Purchasers. It is expressly understood and agreed that each provision contained in this Agreement and in each other Transaction
Document is between the Company and a Purchaser, solely, and not between the Company and the Purchasers collectively and not between
and among the Purchasers.
5.20 Liquidated
Damages. The Company’s obligations to pay any partial liquidated damages or other amounts owing under the Transaction Documents
is a continuing obligation of the Company and shall not terminate until all unpaid partial liquidated damages and other amounts have
been paid notwithstanding the fact that the instrument or security pursuant to which such partial liquidated damages or other amounts
are due and payable shall have been canceled.
5.21 Saturdays,
Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted
herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business Day.
5.22 Construction.
The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity to revise the Transaction Documents
and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall
not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition, each and every reference to
share prices and Ordinary Shares in any Transaction Document shall be subject to adjustment for reverse and forward share splits, share
dividends, share combinations and other similar transactions of the Ordinary Shares that occur after the date of this Agreement.
5.23 Electronic
Signatures. Each party agrees that the electronic signatures, whether digital or encrypted, of the parties included in this
Agreement or any other Transaction Document are intended to authenticate this writing and to have the same force and effect as manual
signatures. Electronic signature means any electronic sound, symbol, or process attached to or logically associated with a record and
executed and adopted by a party with the intent to sign such record, including facsimile or email electronic signatures. The Borrower
expressly agrees that this Agreement and all other Transaction Documents are “transferable records” as defined in applicable
Regulations relating to electronic transaction and that it may be created, authenticated, stored, transmitted and transferred in a manner
consistent with and permitted by such applicable Regulations.
5.24 Set-Off.
In addition to any rights now or hereafter granted under applicable regulations and not by way of limitation of any such rights, each
Purchaser is hereby authorized by the Company at any time or from time to time, without notice or demand to the Company or to any other
Person, any such notice or demand being hereby expressly waived, to set off and to appropriate and to apply any and all deposits (general
or special, time or demand, provisional or final, including indebtedness evidenced by certificates of deposit, whether matured or unmatured,
but not including trust accounts) and any other indebtedness or other amounts at any time held or owing by the Company or any Subsidiary
to or for the credit or the account of the Company or any of its Affiliates against and on account of any amounts due by the Company
or any of its Affiliates to such Purchaser under any Transaction Documents (including from the purchase price to be disbursed hereunder),
irrespective of whether or not (a) such Purchaser shall have made any demand hereunder or (b) the principal of or the interest on
the Notes or any other Obligation shall have become due and payable and although such obligations and liabilities, or any of them, may
be contingent or unmatured. If, as a result of such set off, appropriate or application, such Purchaser receives more than it is owed
under any Transaction Document, it shall hold such amounts in trust for the other Purchaser Parties and transfer such amounts to the
other Purchaser Parties ratably according to the amounts they are owed on the date of receipt.
5.25 WAIVER
OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES EACH
KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND
EXPRESSLY WAIVES FOREVER TRIAL BY JURY.
(Signature
Pages Follow)
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
COLOR STAR TECHNOLOGY CO., LTD. |
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[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES FOR PURCHASERS FOLLOW]
[PURCHASER
SIGNATURE PAGES TO ADD SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned has caused this Securities Purchase Agreement to be duly executed by its authorized signatory as of
the date first indicated above.
Name
of Purchaser: ____________________________________________________________________________________
Signature
of Authorized Signatory of Purchaser: _____________________________________________________________
Name
of Authorized Signatory: ___________________________________________________________________________
Title
of Authorized Signatory: ____________________________________________________________________________
Email
Address of Authorized Signatory: ____________________________________________________________________
Facsimile
Number of Authorized Signatory: _________________________________________________________________
Address
for Notice to Purchaser:
Address
for Delivery of Securities to Purchaser (if not same as address for notice):
Subscription
Amount: US$_____________
Principal
Amount (1.086956522 x Subscription Amount): US$_____________
Warrant
Shares: _________________
EIN
Number: _______________________
Exhibit 99.4
September __, 2024
Color Star Technology Co., Ltd.
80 Broad Street, 5th Floor
New York, NY 10005
Attention: Louis Luo, CEO
Dear Mr. Luo:
This letter (the “Agreement”)
constitutes the agreement between Maxim Group LLC (“Maxim” or the “Placement Agent”) and Color
Star Technology Co., Ltd., a Cayman Islands company (the “Company”), pursuant to which the Placement Agent shall serve
as the placement agent for the Company, on a “reasonable best efforts” basis, in connection with the proposed placement (the
“Placement”) of Senior Convertible Notes (the “Notes”) convertible into Class A ordinary shares
of the Company, par value $0.04 per share (the “Shares”) and registered Series A warrants to purchase Class A ordinary
shares (the “Warrants”, and the Class A ordinary shares underlying the Warrants, the “Warrant Shares”,
and collectively, with the Notes and the Warrants, the “Securities”). The terms of the Placement and the Securities
shall be mutually agreed upon by the Company and the purchasers (each, a “Purchaser” and collectively, the “Purchasers”)
and nothing herein constitutes that the Placement Agent would have the power or authority to bind the Company or any Purchaser or an
obligation for the Company to issue any Securities or complete the Placement. This Agreement and the documents executed and delivered
by the Company and the Purchasers in connection with the Placement, including but not limited to the Purchase Agreement (as defined below),
the Notes, the Lock-Up Agreements and the form of Warrants shall be collectively referred to herein as the “Transaction Documents.”
The date of the closings of the Placement shall be referred to herein as the “Closing Date.” The Company expressly
acknowledges and agrees that the Placement Agent’s obligations hereunder are on a reasonable best efforts basis only and that the
execution of this Agreement does not constitute a commitment by the Placement Agent to purchase the Securities and does not ensure the
successful placement of the Securities or any portion thereof or the success of the Placement Agent’s with respect to securing
any other financing on behalf of the Company. The Placement Agent may retain other brokers or dealers to act as sub-agents or selected-dealers
on its behalf in connection with the Placement. The sale of the Securities to any Purchaser will be evidenced by a securities purchase
agreement (the “Purchase Agreement”) between the Company and such Purchaser in a form reasonably acceptable to the
Company and the Placement Agent. Capitalized terms that are not otherwise defined herein have the meanings given to such terms in the
Purchase Agreement. Prior to the signing of any Purchase Agreement, officers of the Company will be available to answer inquiries from
prospective Purchasers.
SECTION 1. REPRESENTATIONS
AND WARRANTIES OF THE COMPANY; COVENANTS OF THE COMPANY.
A. Representations of the
Company. Each of the representations and warranties (together with any related disclosure schedules thereto) and covenants made by
the Company to the Purchasers in the Purchase Agreement in connection with the Placement is hereby incorporated herein by reference into
this Agreement (as though fully restated herein) and is, as of the date of this Agreement and as of each Closing Date, hereby made to,
and in favor of, the Placement Agent. In addition to the foregoing, the Company represents and warrants that:
1. The Company has prepared
and filed with the Commission a registration statement on Form F-3 (Registration No. 333-281668), as amended, including the exhibits thereto,
as amended at the date of this Agreement, the “Registration Statement”) registering the Notes and the Warrants pursuant
to the Securities Act of 1933, as amended (the “Securities Act”) for the registration of the Notes and Warrants, and
the Registration Statement became effective on August 28, 2024. At the time of such filing, the Company met the requirements of Form F-3
under the Securities Act. The Registration Statement meets the requirements set forth in Rule 415(a)(1)(x) under the Securities Act and
complies with said Rule. The Company will file with the Commission pursuant to Rule 424(b) under the Securities Act, and the rules and
regulations (the “Rules and Regulations”) of the Commission promulgated thereunder, a supplement to the form of prospectus
included in such Registration Statement relating to the placement of the Notes and Warrants and the plan of distribution thereof and has
advised the Placement Agent of all further information (financial and other) with respect to the Company required to be set forth therein.
Such prospectus in the form in which it appears in the Registration Statement is hereinafter called the “Base Prospectus”;
and the supplemented form of prospectus, in the form in which it will be filed with the Commission pursuant to Rule 424(b) (including
the Base Prospectus as so supplemented) is hereinafter called the “Prospectus Supplement.” Any reference in this Agreement
to the Registration Statement, the Base Prospectus or the Prospectus Supplement shall each be deemed to refer to and include the documents
incorporated by reference therein (the “Incorporated Documents”) pursuant to Item 6 of Form F-3 which were filed under
the Exchange Act on or before the date of this Agreement, or the issue date of the Base Prospectus or the Prospectus Supplement, as the
case may be; and any reference in this Agreement to the terms “amend,” “amendment” or “supplement” with
respect to the Registration Statement, the Base Prospectus or the Prospectus Supplement shall be deemed to refer to and include the filing
of any document under the Exchange Act after the date of this Agreement, or the issue date of the Base Prospectus or the Prospectus Supplement,
as the case may be, deemed to be incorporated therein by reference. All references in this Agreement to financial statements and schedules
and other information which is “contained,” “included,” “described,” “referenced,” “set forth”
or “stated” in the Registration Statement, the Base Prospectus or the Prospectus Supplement (and all other references of like
import) shall be deemed to mean and include all such financial statements and schedules and other information which is or is deemed to
be incorporated by reference in the Registration Statement, the Base Prospectus or the Prospectus Supplement, as the case may be. No stop
order suspending the effectiveness of the Registration Statement or the use of the Base Prospectus or the Prospectus Supplement has been
issued, and no proceeding for any such purpose is pending or has been initiated or, to the Company’s knowledge, is threatened by the Commission.
2. The Registration Statement
(and any further documents to be filed with the Commission) contains all exhibits and schedules as required by the Securities Act. Each
of the Registration Statement and any post-effective amendment thereto, at the time it became effective, complied in all material respects
with the Securities Act and the Exchange Act and the applicable Rules and Regulations and did not and, as amended or supplemented, if
applicable, will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The Registration Statement, Base Prospectus and the Prospectus Supplement, each
as of its respective date, comply in all material respects with the Securities Act and the Exchange Act and the applicable Rules and Regulations.
Each of the Registration Statement, the Base Prospectus and the Prospectus Supplement, as amended or supplemented, did not and will not
contain as of the date thereof any untrue statement of a material fact or 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 Incorporated Documents, when they
were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act and the applicable Rules and
Regulations, and none of such documents, when they were filed with the Commission, contained any untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein (with respect to Incorporated Documents incorporated by reference
in the Base Prospectus or Prospectus Supplement), in the light of the circumstances under which they were made not misleading; and any
further documents so filed and incorporated by reference in the Registration Statement, the Base Prospectus, or Prospectus Supplement,
when such documents are filed with the Commission, will conform in all material respects to the requirements of the Exchange Act and the
applicable Rules and Regulations, as applicable, and will not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. No post-effective
amendment to the Registration Statement reflecting any facts or events arising after the date thereof which represent, individually or
in the aggregate, a fundamental change in the information set forth therein is required to be filed with the Commission. There are no
documents required to be filed with the Commission in connection with the transaction contemplated hereby that (x) have not been filed
as required pursuant to the Securities Act or (y) will not be filed within the requisite time period. There are no contracts or other
documents required to be described in the Registration Statement, the Base Prospectus, or Prospectus Supplement, or to be filed as exhibits
or schedules to the Registration Statement, which (x) have not been described or filed as required or (y) will not be filed within the
requisite time period.
3. The Company is eligible
to use free writing prospectuses in connection with the Placement pursuant to Rules 164 and 433 under the Securities Act. Any free writing
prospectus that the Company is required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with the
Commission in accordance with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder.
Each free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that
was prepared by or behalf of or used by the Company complies or will comply in all material respects with the requirements of the Securities
Act and the applicable rules and regulations of the Commission thereunder. The Company will not, without the prior consent of the Placement
Agent, prepare, use or refer to, any free writing prospectus.
4. There are no affiliations
with any FINRA member firm among the Company’s officers, directors or, to the knowledge of the Company, any five percent (5.0%) or greater
shareholder of the Company, except as set forth in the Registration Statement and SEC Reports.
B. Covenants of the Company.
The Company has delivered, or will as promptly as practicable deliver, to the Placement Agent complete conformed copies of the Registration
Statement and of each consent and certificate of experts, as applicable, filed as a part thereof, and conformed copies of the Registration
Statement (without exhibits), the Registration Statement, the Base Prospectus, and the Prospectus Supplement, as amended or supplemented,
in such quantities and at such places as the Placement Agent reasonably requests. Neither the Company nor any of its directors and officers
has distributed and none of them will distribute, prior to the Closing Date, any offering material in connection with the offering and
sale of the Securities pursuant to the Placement other than the Registration Statement, the Base Prospectus, the Prospectus Supplement,
the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities
Act.
SECTION 2. REPRESENTATIONS
OF THE PLACEMENT AGENT. The Placement Agent represents and warrants that it (i) is a member in good standing of FINRA, (ii) is registered
as a broker/dealer under the Exchange Act, (iii) is licensed as a broker/dealer under the laws of the States applicable to the offers
and sales of the Securities by such Placement Agent, (iv) is and will be a body corporate validly existing under the laws of its place
of incorporation, and (v) has full power and authority to enter into and perform its obligations under this Agreement. The Placement Agent
will immediately notify the Company in writing of any change in its status as such. The Placement Agent covenants that it will use its
reasonable best efforts to conduct the Placement hereunder in compliance with the provisions of this Agreement and the requirements of
applicable law.
SECTION 3. COMPENSATION.
In consideration of the services to be provided for hereunder, the Company shall pay to the Placement Agent, or its designees, the following
compensation with respect to the Securities which the Placement Agent is placing:
A. A cash fee (the “Cash
Fee”) equal to an aggregate of six and one-half percent (6.5%) of the aggregate gross proceeds raised in the Placement. The Cash
Fee shall be paid to the Placement Agent at each Closing of the Placement.
B. Subject to compliance with
FINRA Rule 5110(g)(5)(A), the Company also agrees to reimburse the Placement Agent a reasonable out-of-pocket actual expenses of up to
$50,000 for all costs and expenses incurred by it or its affiliates in connection with the structuring, documentation, negotiation and
closing of the transactions contemplated by the Transaction Documents (including, without limitation, any other reasonable fees and expenses
in connection with the structuring, documentation, negotiation and closing of the transactions contemplated by the Transaction Documents
and due diligence and regulatory filings in connection therewith). The Company will reimburse the Placement Agent directly out of the
First Closing of the Placement.
C. Upon each Closing of a Placement,
for a period of two (2) months from such Closing (the “Tail Period”), if the Company decides to enter into another placement
using an underwriter, placement agent, agent, advisor, finder or other person or entity in connection with such placement, the Company
shall grant the Placement Agent the right of first refusal to act as sole managing underwriter and sole book runner, sole placement agent,
or sole sales agent for any and all future public or private equity, equity-linked or debt (excluding commercial bank debt) offerings
(each, a “Subsequent Offering”) undertaken during the Tail Period by the Company or any successor to or any subsidiary
of the Company. The Company shall provide the Placement Agent with written notice of its election to engage in a Subsequent Offering,
which notice shall describe the proposed terms and conditions of such Subsequent Offering. The Placement Agent shall notify the Company
within ten (10) business days of its receipt of the written offer contemplated above as to whether or not it agrees to accept such retention.
If the Placement Agent should decline such retention, the Company shall have no further obligation to the Placement Agent with respect
to such other Subsequent Offering, except as otherwise provided for herein. For avoidance of doubt, the Placement Agent acknowledges that
if the Company issues securities in any form of financing without the use of an agent or underwriter, such transaction shall not be deemed
a Subsequent Offering.
D. The Placement Agent reserves
the right to reduce any item of its compensation or adjust the terms thereof as specified herein in the event that a determination shall
be made by FINRA to the effect that the Placement Agent’s aggregate compensation is in excess of FINRA Rules or that the terms thereof
require adjustment.
SECTION 4. INDEMNIFICATION.
The Company agrees to the indemnification and other agreements set forth in the Indemnification Provisions (the “Indemnification”)
attached hereto as Addendum A, the provisions of which are incorporated herein by reference and shall survive the termination or
expiration of this Agreement.
SECTION 5. ENGAGEMENT
TERM. The Placement Agent’s engagement hereunder shall be until the earlier of (i) the final closing date of the Placement and (ii)
the date when either party of this Agreement terminates the engagement according to the terms as set forth in the next sentence (such
date, the “Termination Date”). The Agreement may be terminated, after an initial period of two (2) months from September
4, 2024, by either party upon 10 days written notice to the other party. Following either (i) the occurrence of the closing of the Placement
or (ii) in the event that the Company elects to terminate the Placement Agent’s engagement hereunder for any reason even though the Placement
Agent was prepared to proceed with the Placement, and, in either case, if within twelve (12) months following each closing or any such
termination, the Company completes any financing of equity, equity-linked, convertible or debt or other capital raising activity with,
or receives any proceeds from, any of the investors contacted or introduced by the Placement Agent during its engagement as evidenced
by a list of such investors provided to the Company upon such closing or termination, then the Company will pay to the Placement Agent
upon the closing of such financing the compensation set forth in Section 3 herein to the extent of the gross proceeds received. If the
Company reasonably anticipates that the Placement Agent may become entitled to payment as set forth in the preceding sentence, the Company
shall use its best efforts to notify the Placement Agent promptly of such possible payment. Notwithstanding anything to the contrary contained
herein, the provisions concerning confidentiality, indemnification, contribution and the Company’s obligations to pay fees and reimburse
expenses contained herein and the Company’s obligations contained in the Indemnification Provisions will survive any expiration or termination
of this Agreement for twelve (12) months, irrespective of whether a closing occurs. All such fees and reimbursements due shall be paid
to the Placement Agent on or before the Termination Date (in the event such fees and reimbursements are earned or owed as of the Termination
Date) or upon the closing of the Placement or any applicable portion thereof (in the event such fees are due as of the Termination Date).
The Placement Agent agrees not to use any confidential information concerning the Company provided to them by the Company for any purposes
other than those contemplated under this Agreement.
SECTION 6. PLACEMENT
AGENT INFORMATION. Notwithstanding anything herein to the contrary, if in the course of the Placement Agent’s performance of due diligence,
the Placement Agent deems it necessary to terminate this Agreement, the Placement Agent may do so at any time upon immediate written notice.
The Company agrees that any information or advice rendered by the Placement Agent in connection with this engagement is for the confidential
use of the Company only in their evaluation of the Placement and, except as otherwise required by law, the Company will not disclose or
otherwise refer to the advice or information in any manner without the Placement Agent’s prior written consent.
SECTION 7. NO FIDUCIARY
RELATIONSHIP. This Agreement does not create, and shall not be construed as creating rights enforceable by any person or entity not
a party hereto, except those entitled hereto by virtue of the Indemnification Provisions hereof. The Company acknowledges and agrees that
the Placement Agent is not and shall not be construed as a fiduciary of the Company and shall have no duties or liabilities to the equity
holders or the creditors of the Company or any other person by virtue of this Agreement or the retention of the Placement Agent hereunder,
all of which are hereby expressly waived.
SECTION 8. CLOSING.
The obligations of the Placement Agent, and the closings of the sale of the Securities hereunder are subject to the accuracy, when made
and on each Closing Date, of the representations and warranties on the part of the Company and its Subsidiaries contained herein and in
the Purchase Agreement, to the accuracy of the statements of the Company and its Subsidiaries made in any certificates pursuant to the
provisions hereof, to the performance by the Company and its Subsidiaries of their obligations hereunder, and to each of the following
additional terms and conditions, except as otherwise disclosed to and acknowledged and waived by the Placement Agent.
A. No stop order suspending
the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been initiated or
threatened by the Commission, and any request for additional information on the part of the Commission (to be included in the Registration
Statement, the Base Prospectus, the Prospectus Supplement or otherwise) shall have been complied with to the reasonable satisfaction of
the Placement Agent. Any filings required to be made by the Company in connection with the Placement shall have been timely filed with
the Commission.
B. The Placement Agent shall
not have discovered and disclosed to the Company on or prior to each Closing Date that the Registration Statement, the Base Prospectus,
the Prospectus Supplement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel
for the Placement Agent, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to
be stated therein or is necessary to make the statements therein not misleading.
C. All corporate proceedings
and other legal matters incident to the authorization, form, execution, delivery and validity of each of this Agreement, the Securities,
the Registration Statement, the Base Prospectus and the Prospectus Supplement and all other legal matters relating to this Agreement and
the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Placement Agent, and
the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass
upon such matters.
D. The Placement Agent shall
have completed its due diligence investigation of the Company to the satisfaction of the Placement Agent and its counsel.
E. The Placement Agent shall
have received from outside counsels to the Company such counsels’ written opinions, addressed to the Placement Agent and the Purchasers
and dated as of each Closing Date, in form and substance reasonably satisfactory to the Placement Agent; provided, however,
that the negative assurance letter will be only addressed to the Placement Agent.
F. On each Closing Date, the
Placement Agent shall have received a “comfort” letter from Audit Alliance LLP as of such date, addressed to the Placement Agent
and in form and substance satisfactory in all respects to the Placement Agent and Placement Agent’s counsel.
G. On each Closing Date, Placement
Agent shall have received a certificate of the Chief Executive Officer of the Company, dated, as applicable, as of the date of such Closing,
to the effect that, as of the date of this Agreement and as of the applicable date, the representations and warranties of the Company
contained herein and in the Purchase Agreement were and are accurate in all material respects, except for such changes as are contemplated
by this Agreement and except as to representations and warranties that were expressly limited to a state of facts existing at a time prior
to the applicable Closing Date, and that, as of the applicable date, the obligations to be performed by the Company hereunder on or prior
thereto have been fully performed in all material respects.
H. On each Closing Date, Placement
Agent shall have received a certificate of an Officer of the Company, dated, as applicable, as of the date of such Closing, certifying
to, among others, the organizational documents and board resolutions relating to the Placement of the Securities from the Company.
I. Reserved.
J. Reserved.
K. On each Closing Date, Placement
Agent shall have received a certificate of the Chief Executive Officer and Chief Financial Officer of the Company, dated, as applicable,
as of the date of such Closing, certifying to, the Company’s eligibility to use the Registration Statement.
L. Lock-Up Agreements. On or
before the First Closing Date, the Placement Agent shall have received, and the Company shall have caused to be delivered to the Placement
Agent, lock-up agreements from the persons specified in the Purchase Agreement in form and substance satisfactory to the Placement Agent.
M. Neither the Company nor any
of its Subsidiaries (i) shall have sustained since the date of the latest audited financial statements included or incorporated by reference
in the Registration Statement, the Base Prospectus and the Prospectus Supplement, any loss or interference with its business from fire,
explosion, flood, terrorist act or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth in or contemplated by the Registration Statement, the Base Prospectus and the Prospectus
Supplement, or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Company or any
of its Subsidiaries or any change, or any development involving a prospective change, in or affecting the business, general affairs, management,
financial position, stockholders’ equity, results of operations or prospects of the Company and its Subsidiaries, otherwise than as set
forth in or contemplated by the Registration Statement, the Base Prospectus and the Prospectus Supplement, the effect of which, in any
such case described in clause (i) or (ii), is, in the judgment of the Placement Agent, so material and adverse as to make it impracticable
or inadvisable to proceed with the sale or delivery of the Securities on the terms and in the manner contemplated by the Registration
Statement, the Base Prospectus, and Prospectus Supplement.
N. The Company’s Ordinary Shares,
par value, $0.04 per share (the “Ordinary Shares”) are registered under the Exchange Act and, as of each Closing Date,
the Company has submitted the notification of listing of additional shares including the Shares underlying the Notes and the Warrant Shares
to the Trading Market or other U.S. applicable national exchange and has not received any information indicating that the such listing
of the Shares underlying the Notes and Warrant Shares will be rejected and satisfactory evidence of such action shall have been provided
to the Placement Agent. The Company shall have taken no action designed to, or likely to have the effect of terminating the registration
of the Ordinary Shares under the Exchange Act or delisting or suspending from trading the Shares underlying the Notes and Warrant Shares
from the Trading Market or other applicable U.S. national exchange, nor has the Company received any information suggesting that the Commission
or the Trading Market or other U.S. applicable national exchange is contemplating terminating such registration or listing.
O. No action shall have been
taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would,
as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially and adversely
affect the business or operations of the Company; and no injunction, restraining order or order of any other nature by any federal or
state court of competent jurisdiction shall have been issued as of each Closing Date which would prevent the issuance or sale of the Securities
or materially and adversely affect or potentially and adversely affect the business or operations of the Company.
P. The Company shall have prepared
and filed with the Commission a Report of Foreign Private Issuer on Form 6-K with respect to the Placement, including as an exhibit thereto
this Agreement.
Q. The Company shall have entered
into a Purchase Agreement with each of the Purchasers and such agreements shall be in full force and effect and shall contain representations,
warranties and covenants of the Company as agreed between the Company and the Purchasers.
R. FINRA shall have raised no
objection to the fairness and reasonableness of the terms and arrangements of this Agreement. In addition, the Company shall, if requested
by the Placement Agent, make or authorize Placement Agent’s counsel to make on the Company’s behalf, any filing with the FINRA Corporate
Financing Department pursuant to FINRA Rule 5110 with respect to the Placement and pay all filing fees required in connection therewith.
S. Prior to each Closing Date,
the Company shall have furnished to the Placement Agent such further information, certificates and documents as the Placement Agent may
reasonably request.
If any of the conditions specified
in this Section 8 shall not have been fulfilled when and as required by this Agreement, or if any of the certificates, opinions, written
statements or letters furnished to the Placement Agent or to Placement Agent’s counsel pursuant to this Section 8 shall not be reasonably
satisfactory in form and substance to the Placement Agent and to Placement Agent’s counsel, all obligations of the Placement Agent hereunder
may be cancelled by the Placement Agent at, or at any time prior to, the consummation of each Closing. Notice of such cancellation shall
be given to the Company in writing or orally. Any such oral notice shall be confirmed promptly thereafter in writing.
SECTION 9. GOVERNING
LAW. This Agreement will be governed by, and construed in accordance with, the laws of the State of New York applicable to agreements
made and to be performed entirely in such State. This Agreement may not be assigned by either party without the prior written consent
of the other party. This Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors
and permitted assigns. Any right to trial by jury with respect to any dispute arising under this Agreement or any transaction or conduct
in connection herewith is waived. Any dispute arising under this Agreement may be brought into the courts of the State of New York or
into the Federal Court located in New York, New York and, by execution and delivery of this Agreement, the Company hereby accepts for
itself and in respect of its property, generally and unconditionally, the jurisdiction of aforesaid courts. Each party hereto hereby irrevocably
waives personal service of process and consents to process being served in any such suit, action or proceeding by delivering a copy thereof
via overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees
that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law. The Company agrees that a final judgment in any such action,
proceeding or counterclaim brought in any such court shall be conclusive and binding upon the Company and may be enforced in any other
courts to the jurisdiction of which the Company is or may be subject, by suit upon such judgment. If either party shall commence an action
or proceeding to enforce any provisions of a Transaction Document, then the prevailing party in such action or proceeding shall be reimbursed
by the other party for its attorney’s fees and other costs and expenses incurred with the investigation, preparation and prosecution of
such action or proceeding. In addition to and without limiting the foregoing, the Company has confirmed that it has appointed CT Corporation,
as its authorized agent (the “Authorized Agent”) upon whom process may be served in any suit, action or proceeding
arising out of or based upon the Agreement or the Transaction Documents or the transactions contemplated herein which may be instituted
in any New York federal or state court, by the Placement Agent, the directors, officers, partners, employees and agents of the Placement
Agent and each affiliate of the Placement Agent, and expressly accept the non-exclusive jurisdiction of any such court in respect of any
such suit, action or proceeding. The Company hereby represents and warrants that the Authorized Agent has accepted such appointment and
has agreed to act as said agent for service of process, and the Company agrees to take any and all action, including the filing of any
and all documents that may be necessary to continue such appointment in full force and effect as aforesaid. The Company hereby authorizes
and directs the Authorized Agent to accept such service. Service of process upon the Authorized Agent shall be deemed, in every respect,
effective service of process upon the Company. If the Authorized Agent shall cease to act as agent for service of process, the Company
shall appoint, without unreasonable delay, another such agent in the United States, and notify you of such appointment. This paragraph
shall survive any termination of this Agreement, in whole or in part.
SECTION 10. ENTIRE
AGREEMENT/MISC. This Agreement (including the attached Indemnification Provisions) embodies the entire agreement and understanding
between the parties hereto, and supersedes all prior agreements and understandings, relating to the subject matter hereof. Notwithstanding
anything herein to the contrary, the certain letter agreement, dated September 4, 2024 (the “Engagement Agreement”),
by and between the Company and the Placement Agent, shall continue to be effective and the terms therein shall continue to survive and
be enforceable by the Placement Agent in accordance with its terms, provided that, in the event of a conflict between the terms of the
Engagement Agreement and this Agreement, the terms of this Agreement shall prevail. If any provision of this Agreement is determined to
be invalid or unenforceable in any respect, such determination will not affect such provision in any other respect or any other provision
of this Agreement, which will remain in full force and effect. This Agreement may not be amended or otherwise modified or waived except
by an instrument in writing signed by the Placement Agent and the Company. The representations, warranties, agreements and covenants contained
herein shall survive the closing of the Placement and delivery of the Securities. This Agreement may be executed in two or more counterparts,
all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been
signed by each party and delivered to the other party, it being understood that both parties need not sign the same counterpart. In the
event that any signature is delivered by facsimile transmission or a .pdf format file, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile
or .pdf signature page were an original thereof.
SECTION 11. CONFIDENTIALITY.
The Placement Agent (i) will keep the Confidential Information (as such term is defined below) confidential and will not (except as required
by applicable law or stock exchange requirement, regulation or legal process), without the Company’s prior written consent, disclose to
any person any Confidential Information, and (ii) will not use any Confidential Information other than in connection with the Placement.
The Placement Agent further agrees to disclose the Confidential Information only to its Representatives (as such term is defined below)
who need to know the Confidential Information for the purpose of the Placement, and who are informed by the Placement Agent of the confidential
nature of the Confidential Information. The term “Confidential Information” shall mean, all confidential, proprietary
and non-public information (whether written, oral or electronic communications) furnished by the Company to a Placement Agent or its Representatives
in connection with such Placement Agent’s evaluation of the Placement. Information communicated orally or otherwise than in writing, shall
only be considered Confidential Information if such information is designated as being confidential at the time of disclosure (or promptly
thereafter) and is reduced in writing and identified to the Placement Agent as being Confidential Information immediately after the initial
disclosure. The term “Confidential Information” will not, however, include information which (i) is or becomes publicly
available other than as a result of a disclosure by a Placement Agent or its Representatives in violation of this Agreement, (ii) is or
becomes available to a Placement Agent or any of its Representatives on a non-confidential basis from a third-party, (iii) is known to
a Placement Agent or any of its Representatives prior to disclosure by the Company or any of its Representatives, (iv) is or has been
independently developed by a Placement Agent and/or the Representatives without use of any Confidential Information furnished to it by
the Company, or (v) is required to be disclosed pursuant to applicable legal or regulatory authority. The term “Representatives”
shall mean each Placement Agent’s directors, board committees, officers, employees, financial advisors, attorneys and accountants. This
provision shall be in full force until the earlier of (a) the date that the Confidential Information ceases to be confidential and (b)
two (2) years from the date hereof.
SECTION 12. NOTICES.
Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall
be deemed given and effective on the earliest of (a) the date of transmission, if such notice or communication is sent to the email address
specified on the signature pages attached hereto prior to 6:30 p.m. (New York City time) on a business day, (b) the next business day
after the date of transmission, if such notice or communication is sent to the email address on the signature pages attached hereto on
a day that is not a business day or later than 6:30 p.m. (New York City time) on any business day, (c) the third business day following
the date of mailing, if sent by U.S. internationally recognized air courier service, or (d) upon actual receipt by the party to whom such
notice is required to be given. The address for such notices and communications shall be as set forth on the signature pages hereto.
SECTION 13. PRESS
ANNOUNCEMENTS. The Company agrees that the Placement Agent shall, from and after any Closing, have the right to reference the
Placement and the Placement Agent’s role in connection therewith in the Placement Agent’s marketing materials and on its website and to
place advertisements in financial and other newspapers and journals, in each case at its own expense.
[The remainder of this page has been intentionally
left blank.]
Please confirm that the foregoing
correctly sets forth our agreement by signing and returning to Maxim the enclosed copy of this Agreement.
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Very truly yours, |
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MAXIM GROUP LLC
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By: |
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Name: |
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Title: |
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Address for notice: |
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300 Park Ave., 16th Floor |
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New York, NY 10022 |
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Attention: James Siegel, General Counsel |
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Email: jsiegel@maximgrp.com |
Accepted and Agreed to as of
the date first written above:
COLOR STAR TECHNOLOGY CO., LTD. |
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By: |
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Name: |
Louis Luo |
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Title: |
Chief Executive Officer |
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Color Star Technology Co. Ltd.
80 Broad Street, 5th Floor
New York, NY 10005
Attention: Louis Luo, CEO
[Signature Page to Placement Agency Agreement
Between
Color Star Technology Co., Ltd. and Maxim Group
LLC]
ADDENDUM A
INDEMNIFICATION PROVISIONS
In connection with the engagement
of Maxim Group LLC (the “Placement Agent”) by Color Star Technology Co., Ltd., a Cayman company pursuant to a placement
agency agreement dated as of the date hereof, between the Company and the Placement Agent, as it may be amended from time to time in writing
(the “Agreement”), the Company hereby agrees as follows:
1. To the extent permitted
by law, the Company will indemnify the Placement Agent and each of its affiliates, directors, officers, employees and controlling persons
(within the meaning of Section 15 of the Securities Act of 1933, as amended, or Section 20 of the Securities Exchange Act of 1934, as
amended) against all losses, claims, damages, expenses and liabilities, as the same are incurred (including the reasonable fees and expenses
of counsel), relating to or arising out of its activities hereunder or pursuant to the Agreement, except, with regard to the Placement
Agent, to the extent that any losses, claims, damages, expenses or liabilities (or actions in respect thereof) are found in a final judgment
(not subject to appeal) by a court of law to have resulted primarily and directly from the Placement Agent’s willful misconduct or gross
negligence in performing the services described herein, as the case may be.
2. Promptly after receipt
by the Placement Agent of notice of any claim or the commencement of any action or proceeding with respect to which the Placement Agent
is entitled to indemnity hereunder, the Placement Agent will notify the Company in writing of such claim or of the commencement of such
action or proceeding, and the Company will assume the defense of such action or proceeding and will employ counsel reasonably satisfactory
to the Placement Agent and will pay the fees and expenses of such counsel. Notwithstanding the preceding sentence, the Placement Agent
will be entitled to employ counsel separate from counsel for the Company and from any other party in such action if counsel for the Placement
Agent reasonably determines that it would be inappropriate under the applicable rules of professional responsibility for the same counsel
to represent both the Company and the Placement Agent. In such event, the reasonable fees and disbursements of no more than one such separate
counsel will be paid by the Company. The Company will have the exclusive right to settle the claim or proceeding provided that the Company
will not settle any such claim, action or proceeding without the prior written consent of the Placement Agent, which will not be unreasonably
withheld.
3. The Company agrees to notify
the Placement Agent promptly of the assertion against it or any other person of any claim or the commencement of any action or proceeding
relating to a transaction contemplated by the Agreement.
4. If for any reason the foregoing
indemnity is unavailable to the Placement Agent or insufficient to hold the Placement Agent harmless, then the Company shall contribute
to the amount paid or payable by the Placement Agent, as the case may be, as a result of such losses, claims, damages or liabilities in
such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand, and the Placement
Agent on the other, but also the relative fault of the Company on the one hand and the Placement Agent on the other that resulted in such
losses, claims, damages or liabilities, as well as any relevant equitable considerations. The amounts paid or payable by a party in respect
of losses, claims, damages and liabilities referred to above shall be deemed to include any legal or other fees and expenses incurred
in defending any litigation, proceeding or other action or claim. Notwithstanding the provisions hereof, the Placement Agent’s share of
the liability hereunder shall not be in excess of the amount of fees actually received, or to be received, by the Placement Agent under
the Agreement (excluding any amounts received as reimbursement of expenses incurred by the Placement Agent).
5. These Indemnification Provisions
shall remain in full force and effect whether or not the transaction contemplated by the Agreement is completed and shall survive the
termination of the Agreement, and shall be in addition to any liability that the Company might otherwise have to any indemnified party
under the Agreement or otherwise.
[The remainder of this page has been intentionally
left blank.]
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Very truly yours, |
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MAXIM GROUP LLC |
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By: |
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Name: |
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Title: |
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Address for notice: |
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300 Park Ave, 16th Floor |
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New York, NY 10022 |
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Attention: James Siegel, General Counsel |
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Email: jsiegel@maximgrp.com
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Accepted and Agreed to as of
the date first written above:
COLOR STAR TECHNOLOGY CO., LTD. |
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By: |
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Name: |
Louis Luo |
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Title: |
Chief Executive Officer |
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Color Star Technology Co. Ltd.
80 Broad Street, 5th Floor
New York, NY 10005
Attention: Louis Luo, CEO
[Signature Page to Indemnification Provisions
Pursuant to Placement Agency Agreement
between Color Star Technology Co., Ltd. and
Maxim Group LLC]
15
Exhibit
99.5
Color Star Technology
Announces Pricing of Initial $7.0 Million Tranche of up to $33.0 Million
Registered Senior Secured Convertible Notes
NEW YORK, Sept. 27,
2024 (GLOBE NEWSWIRE) -- Color Star Technology Co., Ltd. (Nasdaq: ADD) (“Color Star” or the “Company”),
an entertainment technology company with a global network that focuses on the application of technology and artificial intelligence in
the entertainment industry, today announced it has entered into securities purchase agreements with certain institutional investors
(the “Investors”) to purchase senior secured convertible notes in the aggregate principal amount of $7.6 million (the “First
Closing”), having an original issue discount of 8% and a maturity of twelve months from issuance, resulting in net proceeds to the
Company of approximately $7,000,000 (the “Convertible Notes”). The Convertible Notes will bear an interest rate of 6.0% per
annum and will be convertible 45 days after the date of the First Closing, subject to certain conditions, into Class A Ordinary Shares
of the Company (the “Ordinary Shares”) at an initial conversion price equal to the lower of $1.60, or the Alternative Conversion
Price, as set forth in the Convertible Notes. This First Closing is expected to occur on or about September 30, 2024, subject to the satisfaction
of customary closing conditions.
Under the terms of the
securities purchase agreements, the Convertible Notes will be issued to the Investors, together with registered warrants to purchase up
to an aggregate of approximately 2.9 million Ordinary Shares. The warrants to be issued at the First Closing will be exercisable 45 days
after issuance, subject to certain conditions (the “Initial Exercise Date”), will expire on the five-year anniversary of the
Initial Exercise Date, and will have an exercise price of $1.60 per share and contain certain anti-dilution provisions.
Maxim Group LLC is acting as the sole placement agent in connection with the offering.
Subject to the satisfaction
of certain conditions, the Company and the Investors may mutually agree to the purchase and sale of additional Convertible Notes and accompanying
warrants for up to an additional aggregate amount of $26.0 million. Any additional Convertible Notes and warrants sold will have
substantially similar terms to those issued in the First Closing.
The securities described
above are being offered pursuant to a shelf registration statement on Form F-3 (File No. 333-281668), which was declared effective by
the United States Securities and Exchange Commission (“SEC”) on August 28, 2024. A prospectus supplement relating to the securities
will be filed by the Company with the SEC. Copies of the prospectus supplement relating to the offering, together with the accompanying
prospectus, can be obtained at the SEC’s website at www.sec.gov or from Maxim Group LLC, 300 Park Avenue, New York, NY 10022, Attention:
Syndicate Department, or via email at syndicate@maximgrp.com or telephone at (212) 895-3500.
This press release does
not constitute an offer to sell or the solicitation of an offer to buy, nor will there be any sales of these securities in any jurisdiction
in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of such jurisdiction.
About Color Star
Technology Co., Ltd.
Color Star Technology
Co., Ltd. (Nasdaq: ADD) is an entertainment and education company that provides online entertainment performances and online music education
services. Its business operations are conducted through its wholly-owned subsidiaries, Color Metaverse Pte. Ltd. and CACM Group NY, Inc.
The Company’s online education is provided through its Color World music and entertainment education platform. More information
about the Company can be found at www.colorstarinternational.com and www.colorstar.investorroom.com.
Forward-Looking
Statements
This press release contains
forward-looking statements as defined by the Private Securities Litigation Reform Act of 1995. Forward-looking statements include statements
concerning plans, objectives, goals, strategies, future events or performance, and underlying assumptions and other statements that are
other than statements of historical facts. When the Company uses words such as “may,” “will,” “intend,”
“should,” “believe,” “expect,” “anticipate,” “project,” “estimate” or similar
expressions that do not relate solely to historical matters, it is making forward-looking statements. Forward-looking statements are not
guarantee of future performance and involve risks and uncertainties that may cause the actual results to differ materially from the Company’s
expectations discussed in the forward-looking statements. These statements are subject to uncertainties and risks including, but not limited
to, the following: the Company’s goals and strategies; the Company’s future business development, including the development of the metaverse
project; product and service demand and acceptance; changes in technology; economic conditions; the growth of the educational and training
services market internationally where ADD conducts its business; reputation and brand; the impact of competition and pricing; government
regulations; the ability of Color Star to meet NASDAQ listing standards in connection with the consummation of the transaction contemplated
therein; and other risks and uncertainties described herein, as well as those risks and uncertainties discussed from time to time in other
reports and other public filings with the Securities and Exchange Commission by Color Star. For these reasons, among others, investors
are cautioned not to place undue reliance upon any forward-looking statements in this press release. Additional factors are discussed
in the Company’s filings with the U.S. Securities and Exchange Commission, which are available for review at www.sec.gov. The Company
undertakes no obligation to publicly revise these forward–looking statements to reflect events or circumstances that arise after
the date hereof unless required by applicable laws, regulations or rules.
Contact
Color Star Investor Relations
Office Number No. 1003, 9th Floor,
7 World Trade Center, Suite 4621
New York NY 10007
Office: (212) 410-5186
Email ir@colorstarinternational.com
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