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 September 2023
Commission File Number: 001-39833
EZGO Technologies Ltd.
(Translation of registrant’s name into English)
Building #A, Floor 2, Changzhou Institute of
Dalian University of Technology,
Science and Education Town, Wujin District,
Changzhou City, Jiangsu, China 213164.
(Address of principal executive offices)
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 ☐
INFORMATION CONTAINED IN THIS FORM 6-K REPORT
On
September 11, 2023, EZGO Technologies Ltd., a British Virgin Islands business company (the “Company”), entered into a securities
purchase agreement (the “Securities Purchase Agreement”) with the investors listed on the signature pages thereto (the “Investors”),
in connection with the offer and sale (the “Offering”) of an aggregate of 8,498,125 ordinary shares of the Company and accompanying
warrants (as further described herein) at a combined purchase price of $1.13 per ordinary share and accompanying warrants, with each
ordinary share being sold together with one common warrant (the “Common Warrant”) exercisable for one ordinary share at an
exercise price of $1.13 per ordinary share, by which the Investors can purchase up to 8,498,125 ordinary shares, and four exchange warrants
(the “Exchange Warrants,” together with the Common Warrants, the “Warrants”) each exercisable for one ordinary
share at an exercise price of $1.13 per ordinary share, by which the Investors can purchase up to 33,992,500 Ordinary Shares, in a registered
direct offering, being made pursuant to the Company’s “shelf” registration statement on Form F-3 (File
No. 333-263315), which was declared effective by the Securities Exchange Commission (the “Commission”) on November
30, 2022, the prospectus contained therein and a prospectus supplement filed with the Commission on September 11, 2023.
In
addition to the customary cashless exercise rights provided in both the Common Warrants and the Exchange Warrants, the Exchange Warrants
will also provide an alternate right to exercise on a cashless basis and receive the total number of ordinary shares which the holder
would have received if exercised, in full, for cash. The Warrants are immediately exercisable and may be exercised for a period of three
years following the issuance date. Additionally, under the Warrants, the Company may not effect the exercise of any Warrant, and a holder
will not be entitled to exercise any portion of a Warrant, which, upon giving effect to such exercise, would cause the aggregate number
of the Company’s ordinary shares beneficially owned by the holder (together with its affiliates) to exceed 4.99% (or, at the election
of the holder, 9.99%) of the number of ordinary shares outstanding immediately after giving effect to the exercise, as such percentage
ownership is determined in accordance with the terms of the Warrants.
On
August 17, 2023, the Company entered into a Placement Agency Agreement (the “Placement Agency Agreement”) with Aegis
Capital Corp. (the “Placement Agent”), relating to the Offering. Aegis
Capital Corp. is acting as the sole placement agent for the Offering. The Company will pay the Placement Agent as compensation a cash
fee equal to $800,000, which is 8% of the gross proceeds of (i) the Offering and (ii) an additional $397,119 of gross proceeds from one
of the Investors in connection with a closing on the sale of 351,433 ordinary shares on September 11, 2023, in connection with which the
Placement Agent also acted as the sole placement agent. The fees payable to the Placement Agent include a 1% non-accountable expense allowance.
The Placement Agent will also be reimbursed for certain legal fees.
Each
of the Placement Agency Agreement and the Securities Purchase Agreement contains customary representations, warranties and agreements
by the Company and customary conditions to closing, indemnification rights and obligations of the parties. The representations, warranties
and covenants contained in the Securities Purchase Agreement were made only for the purposes of such agreements and as of specific dates,
were solely for the benefit of the parties to such agreements and may be subject to limitations agreed upon by the contracting parties.
The
Offering is expected to close on or around September 13, 2023.
The
foregoing descriptions of the Placement Agency Agreement, the Warrants and the Securities Purchase Agreement do not purport to be complete
and are qualified in their entirety by the full text of the Placement Agency Agreement, the Form of Common Warrant, the Form of Exchange
Warrant, and the Securities Purchase Agreement each of which is attached hereto as Exhibits 1.1, 4.1, 4.2 and 10.1, respectively.
The legal opinion of Maples
and Calder relating to the legality of the issuance and sale of the ordinary shares, the Warrants and the ordinary shares issuable upon
exercise of the Warrants in the Offering is attached as Exhibit 5.1 to this Report of Foreign Private Issuer on Form 6-K. The legal opinion
of DeHeng Law Offices (Shenzhen) regarding certain legal matters as to the laws of the People’s Republic of China is attached as
Exhibit 99.1 to this Report of Foreign Private Issuer on Form 6-K.
On September 12, 2023, the
Company issued a press release announcing the launch of the Offering. A copy of that press release is attached as Exhibit 99.2 to this
Report of Foreign Private Issuer on Form 6-K and is incorporated by reference herein.
EXHIBIT INDEX
SIGNATURES
Pursuant to the requirements
of the Securities and Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto
duly authorized.
|
EZGO Technologies Ltd. |
|
|
Date: September 13, 2023 |
By: |
/s/ Jianhui Ye |
|
Name: |
Jianhui Ye |
|
Title: |
Chief Executive Officer |
3
Exhibit 1.1
AEGIS CAPITAL CORP.
August 17, 2023
PERSONAL AND CONFIDENTIAL
Mr. Jianhui Ye, Chief Executive Officer
EZGO Technologies
Ltd
Building #A, Floor 2, Changzhou Institute of Dalian University
of Technology, Science and
Education Town, Wujin District, Changzhou City
Dear Mr. Ye:
The purpose of this engagement letter is to
outline our agreement pursuant to which Aegis Capital Corp. (“Aegis”) will act as the underwriter
on a “firm commitment” basis, or a placement agent on a “best efforts” basis, in connection with the
proposed shelf takedown (the “Offering”) by EZGO Technologies Ltd (collectively, with its subsidiaries and
affiliates, the “Company”) of its ordinary shares (the “Securities”). This
engagement letter sets forth certain conditions and assumptions upon which the Offering is premised. However, except as expressly
provided herein, this engagement letter is not intended to be a binding legal document, as the agreement between the parties hereto
on the matters relating to the Offering will be embodied in the Underwriting Agreement (as defined below) or Placement Agent
Agreement (as defined below). It is contemplated that following the effectiveness of the registration statement relating to the
Offering, this engagement letter will be replaced by the Underwriting Agreement or Placement Agent Agreement, as applicable. The
Company confirms that entry into this Agreement and completion of the Offering with Aegis will not breach or otherwise violate the
Company’s obligations to any other investment bank.
The terms of our agreement in principle are as follows:
1. Engagement.
The Company hereby engages Aegis, for the period beginning on the date hereof and ending thirty (30) business days thereafter or
upon the completion of the Offering, whichever is sooner (the “Engagement Period”), to act as the
Company’s exclusive underwriter placement agent, as applicable, and investment banker in connection with the proposed
Offering. During the Engagement Period or until the consummation of the Offering, and as long as Aegis is proceeding in good faith
with preparations for the Offering, the Company agrees not to solicit, negotiate with or enter into any agreement with any other
source of financing (whether equity, debt or otherwise), any underwriter, potential underwriter, placement agent, financial advisor,
investment banking firm or any other person or entity in connection with an offering of the Company’s debt or equity
securities or any other financing by the Company; provided, however, that the Company shall be permitted to enter into
non-securities-related financing with depositary banks where the proceeds are used solely for financing the Company’s
business.
2. The
Offering. The Offering is expected to consist of a sale of approximately $10.0 million to $20.0 million of the Company’s
Securities. The structure and pricing of the Offering will be mutually agreed upon by the Company and Aegis. Aegis will act as underwriter
for the Offering subject to, among other matters referred to herein and additional customary conditions, completion of Aegis’s
due diligence examination of the Company and its affiliates, listing approval by the Nasdaq Stock Exchange (“Exchange”)
of the Securities to be issued, and the execution of a definitive underwriting agreement between the Company and Aegis in connection
with the Offering (the “Underwriting Agreement”) or a definitive placement agent agreement between the Company
and Aegis in connection with the Offering (the “Placement Agent Agreement”), as applicable. The actual
size of the Offering, the precise number of Securities to be offered by the Company and the offering price will be the subject of continuing
negotiations between the Company and Aegis. The Underwriting Agreement or Placement Agent Agreement, as applicable, will provide that
the Company will grant to Aegis an option, exercisable for 45 days after the closing of the Offering (“Closing”),
to acquire up to an additional 15.0% of the total number of Securities to be offered by the Company in the Offering, solely for the purpose
of covering over-allotments (the “Over-Allotment Securities”).
3. Underwriting/Placement
Agent Compensation. The underwriting discount or placement agent commission will be 7.0%, and a non-accountable expense allowance
equal to 1.0% of the gross proceeds raised in the Offering.
4. Registration
Statement. To the extent the Company decides to proceed with the Offering, the Company will, as soon as practicable, prepare
and file with the Securities and Exchange Commission (the “Commission”) a prospectus supplement (the
“Prospectus Supplement”) to its prospectus dated November 30, 2022 (the “Base
Prospectus”), which forms a part of the Registration Statement on Form F-3 (Reg No. 333-3263315), filed with
the United States Securities and Exchange Commission and declared effective on November 30, 2022 (the “Registration
Statement”), under the Securities Act of 1933, as amended (the “Securities Act”) covering
the Securities to be offered and sold in the Offering. The Registration Statement, (including the Prospectus and Prospectus
Supplement (collectively referred to as the “Prospectus”) therein), and all amendments thereto will be in
form reasonably satisfactory to Aegis and counsel to Aegis. Other than any information provided by Aegis in writing specifically for
inclusion in the Prospectus, the Company will be solely responsible for the contents of its Registration Statement and Prospectus,
as well as all other written or oral communications provided by or on behalf of the Company to any actual or prospective investor of
the Securities, and the Company represents and warrants that such materials and such other communications will not, as of the date
of the offer or sale of the Securities, contain any untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made,
not misleading. If at any time prior to the completion of the Offering an event occurs that would cause the Registration Statement
or Prospectus (as supplemented or amended) to contain an untrue statement of a material fact or to 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 will notify Aegis immediately of such event and Aegis will suspend solicitations of the prospective purchasers of the
Securities until such time as the Company shall prepare a supplement or amendment to the Registration Statement or Prospectus that
corrects such statement or omission. The Company will file as an exhibit to a Form 6-K Report of Foreign Issuer, a proposed form of
Underwriting Agreement or Placement Agent Agreement, as applicable, which may be incorporated into such Registration Statement by
reference. The final Underwriting Agreement or Placement Agent Agreement, as applicable, will be in form satisfactory to the Company
and Aegis and will include indemnification provisions and other terms and conditions customarily found in underwriting or placement
agent agreements for similar transactions.
5. Lock-Ups.
The Underwriting Agreement or Placement Agent Agreement, as applicable, will provide, among other items, that the Company’s directors,
executive officers, employees and shareholders holding at least ten percent (10%) of the outstanding ordinary shares will enter into customary
“lock-up” agreements in favor of the underwriter(s) or placement agent(s) agreeing, for a period of ninety (90) days from the
closing date of the Offering, not to sell or transfer any ordinary shares of the Company, except for certain customary transfers permitted;
provided, however, such transfers will require the transferees of such ordinary shares to comply with the terms of the “lock-up”
agreements and provided further, that none of such shares shall be saleable in the public market until the expiration of the ninety (90)
day period described above, unless otherwise permitted by Aegis.
6. Company
Standstill. The Underwriting Agreement will provide, among other items, that the Company will agree, for a period of ninety (90)
days from the closing date of the Offering, that without the prior written consent of Aegis, it will not (a) offer, sell, issue, or otherwise
transfer or dispose of, directly or indirectly, any equity of the Company or any securities convertible into or exercisable or exchangeable
for equity of the Company; (b) file or cause to be filed any registration statement with the Commission relating to the offering of any
equity securities of the Company or any securities convertible into or exercisable or exchangeable for equity securities of the Company;
or (c) enter into any agreement or announce the intention to effect any of the actions described in subsections (a) or (b) hereof (all
of such matters, the “Standstill”). So long none of such equity securities shall be saleable in the public market
until the expiration of the ninety (90) day period described above, the following matters shall not be prohibited by the Standstill: (i)
the adoption of an equity incentive plan and the grant of awards or equity pursuant to any existing equity incentive plans, and the filing
of a registration statement on Form S-8; and (ii) the issuance of equity securities in connection with an acquisition or a strategic relationship,
which may include the sale of equity securities. In no event should any equity transaction during the Standstill period result in the
sale of equity securities at an offering price to the public less than the offering price any Offering referred to herein.
7. Expenses.
The Company will be responsible for and will pay all expenses relating to the Offering, including, without limitation, (a) all
filing fees and expenses relating to the registration of the Securities with the Commission; (b) all FINRA Public Offering filing
fees; (c) all fees and expenses relating to the listing of the Company’s equity or equity-linked securities on an Exchange;
(d) all fees, expenses and disbursements relating to the registration or qualification of the Securities under the “blue
sky” securities laws of such states and other jurisdictions as Aegis may reasonably designate (including, without limitation,
all filing and registration fees, and the reasonable fees and disbursements of the Company’s “blue sky” counsel,
which will be Aegis’s counsel) unless such filings are not required in connection with the Company’s offer and issuance
of the Securities; (e) all fees, expenses and disbursements relating to the registration, qualification or exemption of the
Securities under the securities laws of such foreign jurisdictions as Aegis may reasonably designate; (f) the costs of all mailing
and printing of the Offering documents; (g) transfer and/or stamp taxes, if any, payable upon the transfer of Securities from the
Company to Aegis; (h) the fees and expenses of the Company’s accountants; and (i) $100,000 for reasonable legal fees and
disbursements for Aegis’s counsel, of which $35,000 shall be paid within two (2) business days following execution of
this letter, with the balance of such legal fees to be paid at Closing from the flow of funds; provided, however, if there is not a
Closing, the Company shall not be obligated to pay any additional amounts for legal fees and disbursements for Aegis’s
counsel, it being agreed and understood that the $35,000 advance payment shall represent all amounts owed by the Company for such
fees and disbursements.
8. Right
of First Refusal. If, for the period beginning on the closing date of the Offering and ending twelve (12) months after the closing
date of the Offering, the Company or any of its subsidiaries decides to (a) finance or refinance any indebtedness, Aegis (or any affiliate
designated by Aegis) shall have the right to act as sole book-runner, sole manager, sole placement agent or sole agent with respect to
such financing or refinancing; provided, however, that the Company shall be permitted to enter into non-securities-related financing with
depositary banks where the proceeds are used solely for financing the Company’s business; or (b) raise funds by means of a public
offering (including at-the-market facility) or a private placement or any other capital raising financing of equity, equity-linked or
debt securities, Aegis (or any affiliate designated by Aegis) shall have the right to act as sole book-running manager, sole underwriter
or sole placement agent for such financing. If Aegis or one of its affiliates decides to accept any such engagement, the agreement governing
such engagement (each, a “Subsequent Transaction Agreement”) will contain, among other things, provisions for customary
fees for transactions of similar size and nature, but in no event will the fees be less than those outlined herein, and the provisions
of this Agreement, including indemnification, which are appropriate to such a transaction. Notwithstanding the foregoing, the decision
to accept the Company’s engagement under this Section 8 shall be made by Aegis or one of its affiliates, by a written notice to
the Company, within ten (10) days of the receipt of the Company’s notification of its financing needs, which notice shall include
a detailed term sheet. In the event Aegis refuses its first right herein or does not respond within ten (10) days after receipt of any
notification from the Company, then the Company shall have the right to seek such financing from another source on the terms described
in such term sheet. The parties agree that any waiver of Aegis’s right of first refusal shall be specifically limited to the terms
in the term sheet, and any change from such term sheet shall require a new notice.
9. Survival.
Except as provided in Paragraphs 7, 9, 10, 11, 12, 13, 14, and 15 hereof (which Paragraphs are intended to be legally binding and
enforceable on and against the Company and Aegis) and the exclusivity language in Section 1, this engagement letter is not intended to
be a binding legal document nor a legal commitment on the part of Aegis to provide any financing to the Company, as the agreement between
the parties hereto on these matters will be embodied in the Underwriting Agreement.
10. Termination. Notwithstanding
anything to the contrary contained herein, the Company agrees that the provisions relating to the payment of fees, reimbursement of
expenses, indemnification and contribution, confidentiality, conflicts, independent contractor and waiver of the right to trial by
jury will survive any termination or expiration of this Agreement. Notwithstanding anything to the contrary contained herein, the
Company has the right to terminate this Agreement for cause in compliance with FINRA Rule 5110(g)(5)(B)(i). During the engagement
hereunder: (i) the Company will not, and will not permit its representatives to, other than in coordination with Aegis, contact or
solicit institutions, corporations or other entities or individuals as potential purchasers of the Securities and (ii) the Company
will not pursue any financing transaction which would be in lieu of an Offering. Furthermore, the Company agrees that during
Aegis’s engagement hereunder, all inquiries from prospective investors will be referred to Aegis.
11. Publicity.
The Company agrees that it will not issue press releases or engage in any other publicity, without Aegis’s prior written consent,
which consent shall not be unreasonably withheld, commencing on the date hereof and continuing until the final closing of the Offering
(which, in the case of a firm commitment offering shall mean the expiration or termination of the over-allotment option).
12. Information.
During the Engagement Period or until the Closing, the Company agrees to cooperate with Aegis and to furnish, or cause to be furnished,
to Aegis, any and all information and data concerning the Company, and the Offering that Aegis deems appropriate (the “Information”).
The Company will provide Aegis reasonable access during normal business hours and upon reasonable prior written notice, from and after
the date of execution of this engagement letter until the date of the Closing or the termination of the Engagement Period, if sooner,
to all of the Company’s assets, properties, books, contracts, commitments and records and to the Company’s officers, directors,
employees, appraisers, independent accountants, legal counsel and other consultants and advisors. Except as contemplated by the terms
hereof or as required by applicable law, Aegis will keep strictly confidential all non-public Information concerning the Company provided
to Aegis. No obligation of confidentiality will apply to Information that: (a) is in the public domain as of the date hereof or hereafter
enters the public domain without a breach by Aegis, (b) was known or became known by Aegis prior to the Company’s disclosure thereof
to Aegis as demonstrated by the existence of its written records, (c) becomes known to Aegis from a source other than the Company which
information is not provided by the breach of an obligation of confidentiality owed to the Company, (d) is disclosed by the Company to
a third party without restrictions on its disclosure or (e) is independently developed by Aegis as demonstrated by its written records.
For the avoidance of doubt, except as otherwise provided herein, all information which is not publicly available relating to the Company’s
proprietary technology is proprietary and confidential.
13. No
Third Party Beneficiaries; No Fiduciary Obligations. This engagement letter 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: (i) Aegis 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 engagement letter or the retention of Aegis hereunder, all of which are hereby expressly waived; and (ii)
Aegis is a full service securities firm engaged in a wide range of businesses and from time to time, in the ordinary course of its
business, Aegis or its affiliates may hold long or short positions and trade or otherwise effect transactions for its own account or
the account of its customers in debt or equity securities or loans of the companies which may be the subject of the transactions
contemplated by this Agreement. During the course of Aegis’s engagement with the Company, Aegis may have in its possession
material, non-public information regarding other companies that could potentially be relevant to the Company or the
transactions contemplated herein but which cannot be shared due to an obligation of confidence to such other companies.
14.
Indemnification, Advancement & Contribution.
(a) Indemnification.
The Company agrees to indemnify and hold harmless Aegis, its affiliates and each person controlling Aegis (within the meaning of
Section 15 of the Securities Act), and the directors, officers, agents and employees of Aegis, its affiliates and each such
controlling person (Aegis, and each such entity or person hereafter is referred to as an “Indemnified
Person”) from and against any losses, claims, damages, judgments, assessments, costs and other liabilities
(collectively, the “Liabilities”), and shall reimburse each Indemnified Person for all fees and expenses
(including the reasonable fees and expenses of counsel for the Indemnified Persons) (collectively, the
“Expenses”) and agrees to advance payment of such Expenses as they are incurred by an Indemnified Person
in investigating, preparing, pursuing or defending any actions, whether or not any Indemnified Person is a party thereto, arising
out of or based upon (i) any untrue statement or alleged untrue statement of a material fact contained in (A) the Registration
Statement, Prospectus or any other offering documents (as from time to time each may be amended and supplemented), (B) any materials
or information provided to investors by, or with the approval of, the Company in connection with the marketing of the Offering,
including any “road show” or investor presentations made to investors by the Company (whether in person or
electronically), or (C) any application or other document or written communication (collectively called “application”)
executed by the Company or based upon written information furnished by the Company in any jurisdiction in order to qualify the
Securities under the securities laws thereof or to file for an exemption from such requirement or filed with the Commission, any
state securities commission or agency, any national securities exchange; or (ii) the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading, unless such statement or omission was made in reliance upon, and in conformity with,
information provided to the Company by Aegis in writing specifically for use in the Registration Statement, Prospectus or any other
offering documents with respect which or resulting from conduct by Aegis or another Indemnified Party, as to which Aegis shall
indemnify and hold harmless the Company, its officers, directors and controlling parties in the manner set forth in this Section 14.
The Company also agrees to reimburse and advance each Indemnified Person for all Expenses as they are incurred in connection with
such Indemnified Person’s enforcement of his or its rights under this Section 14.
(b) Procedure.
Upon receipt by an Indemnified Person of actual notice of an action against such Indemnified Person with respect to which indemnity
may reasonably be expected to be sought under this Section 14, such Indemnified Person shall promptly notify the Company in writing;
provided that failure by any Indemnified Person so to notify the Company shall not relieve the Company from any obligation or
liability which the Company may have on account of this Section 14 or otherwise to such Indemnified Person. The Company shall, if
requested by Aegis, assume the defense of any such action (including the employment of counsel designated by Aegis and reasonably
satisfactory to the Company). Any Indemnified Person 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 Indemnified Person
unless: (i) the Company has failed promptly to assume the defense and employ separate counsel reasonably acceptable to Aegis for the
benefit of Aegis and the other Indemnified Persons or (ii) such Indemnified Person shall have been advised that in the opinion of
counsel that there is an actual or potential conflict of interest that prevents (or makes it imprudent for) the counsel designated
by and engaged by the Company for the purpose of representing the Indemnified Person, to represent both such Indemnified Person and
any other person represented or proposed to be represented by such counsel, in which event the Company shall pay the reasonable fees
and expenses of one counsel, plus local counsel, for all Indemnified Parties, which counsel shall, if Aegis is a defendant, be
designated by Aegis. The Company shall not be liable for any settlement of any action effected without its written consent (which
shall not be unreasonably withheld). In addition, the Company shall not, without the prior written consent of Aegis, settle,
compromise or consent to the entry of any judgment in or otherwise seek to terminate any pending or threatened action in respect of
which advancement, reimbursement, indemnification or contribution may be sought hereunder (whether or not such Indemnified Person is
a party thereto) unless such settlement, compromise, consent or termination (i) includes an unconditional release of each
Indemnified Person, acceptable to such Indemnified Party, from all Liabilities arising out of such action for which indemnification
or contribution may be sought hereunder and (ii) does not include a statement as to or an admission of fault, culpability or a
failure to act, by or on behalf of any Indemnified Person. The advancement, reimbursement, indemnification and contribution
obligations of the Company required hereby shall be made by periodic payments of the amount thereof during the course of the
investigation or defense, as every Liability and Expense is incurred and is due and payable, and in such amounts as fully satisfy
each and every Liability and Expense as it is incurred (and in no event later than 30 days following the date of any invoice
therefore).
(c) Contribution.
In the event that a court of competent jurisdiction makes a finding, final beyond right of review, that indemnity is unavailable to
an Indemnified Person, the Company shall contribute to the Liabilities and Expenses paid or payable by such Indemnified Person in
such proportion as is appropriate to reflect (i) the relative benefits to the Company, on the one hand, and to Aegis and any other
Indemnified Person, on the other hand, of the matters contemplated by this Section 14 or (ii) if the allocation provided by the
immediately preceding clause is not permitted by applicable law, not only such relative benefits but also the relative fault of the
Company, on the one hand, and Aegis and any other Indemnified Person, on the other hand, in connection with the matters as to which
such Liabilities or Expenses relate, as well as any other relevant equitable considerations; provided that in no event shall the
Company contribute less than the amount necessary to ensure that all Indemnified Persons, in the aggregate, are not liable for any
Liabilities and Expenses in excess of the amount of commissions and non-accountable expense allowance actually received by Aegis in
the Offering. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the
Company on the one hand or Aegis on the other and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and Aegis agree that it would not be just and equitable if
contributions pursuant to this subsection 14(c) were determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above in this subsection 14(c). For purposes of this paragraph,
the relative benefits to the Company, on the one hand, and to Aegis on the other hand, of the matters contemplated by this Section
14 shall be deemed to be in the same proportion as: (a) the total value received by the Company in the Offering, whether or not such
Offering is consummated, bears to (b) the commissions paid to Aegis under the Underwriting Agreement. Notwithstanding the above, no
person guilty of fraudulent misrepresentation within the meaning of Section 11(f) of the Securities Act shall be entitled to
contribution from a party who was not guilty of fraudulent misrepresentation.
(d) Limitation.
The Company also agrees that no Indemnified Person shall have any liability (whether direct or indirect, in contract or tort or otherwise)
to the Company for or in connection with advice or services rendered or to be rendered by any Indemnified Person pursuant to this engagement
letter, the transactions contemplated thereby or any Indemnified Person’s actions or inactions in connection with any such advice,
services or transactions, except to the extent that a court of competent jurisdiction has made a finding that Liabilities (and related
Expenses) of the Company have resulted exclusively from such Indemnified Person’s gross negligence or willful misconduct in connection
with any such advice, actions, inactions or services.
15. Governing
Law; Venue. This engagement letter will be deemed to have been made and delivered in the State of New York, USA, and both the
binding provisions of this engagement letter and the transactions contemplated hereby will be governed as to validity, interpretation,
construction, effect and in all other respects by the internal laws of the State of New York, without regard to the conflict of laws principles
thereof. Each of Aegis and the Company: (i) agrees that any legal suit, action or proceeding arising out of or relating to this engagement
letter and/or the transactions contemplated hereby will be instituted exclusively in the courts located in the City of New York, County
of New York, State of New York (ii) waives any objection which it may have or hereafter to the venue of any such suit, action or proceeding,
and (iii) irrevocably consents to the jurisdiction of the courts located in the City of New York, County of New York and State of New
York, in any such suit, action or proceeding. Each of Aegis and the Company further agrees to accept and acknowledge service of any and
all process which may be served in any such suit, action or proceeding in such courts and agrees that service of process upon the Company
mailed by certified mail to the Company’s address will be deemed in every respect effective service of process upon the Company,
in any such suit, action or proceeding, and service of process upon Aegis mailed by certified mail to Aegis’s address will be deemed
in every respect effective service process upon Aegis, in any such suit, action or proceeding. Notwithstanding any provision of this engagement
letter to the contrary, the Company agrees that neither Aegis nor its affiliates, and the respective officers, directors, employees, agents
and representatives of Aegis, its affiliates and each other person, if any, controlling Aegis or any of its affiliates, will have any
liability (whether direct or indirect, in contract or tort or otherwise) to the Company for or in connection with the engagement and transaction
described herein except for any such liability for losses, claims, damages or liabilities incurred by the Company that are finally judicially
determined to have resulted from the bad faith or gross negligence of such individuals or entities. Aegis will act under this engagement
letter as an independent contractor with duties to the Company.
If you are in
agreement with the foregoing, please sign and return to us one copy of this engagement letter. This engagement letter may be executed
in counterparts (including facsimile or .pdf counterparts), each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
[Signature Page of EZGO Shelf
Takedown Letter of Engagement Follows]
|
Very truly yours, |
|
|
|
|
Aegis Capital Corp. |
|
|
|
|
By: |
/s/ Robert Eide |
|
Name: |
Robert Eide |
|
Title: |
Chief Executive Officer |
AGREED AND ACCEPTED:
The foregoing accurately sets
forth our understanding and agreement with respect to the matters set forth herein.
EZGO Technologies Ltd |
|
|
|
|
By: |
/s/ Jianhui Ye |
|
Name: |
Jianhui Ye |
|
Title: |
Chief Executive Officer |
|
[Signature Page of EZGO
Shelf Takedown Letter of Engagement]
Exhibit 4.1
WARRANT TO PURCHASE ORDINARY SHARES
EZGO TECHNOLOGIES LTD.
Warrant Shares: [●] |
Initial Exercise Date: [●], 2023
|
|
Issue Date: [●], 2023 |
THIS WARRANT TO PURCHASE ORDINARY
SHARES (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
the Initial Exercise Date and on or prior to 5:00 p.m. (New York City time) on [●], 2026 (the “Termination Date”)
but not thereafter, to subscribe for and purchase from EZGO Technologies Ltd., a British Virgin Islands business company (the “Company”),
up to [●] ordinary shares (as subject to adjustment hereunder, the “Warrant Shares”). The purchase price of one
(1) 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 or in the Securities Purchase Agreement dated September
11, 2023, 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.
“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.
“Ordinary
Share” means the ordinary shares of the Company, $0.001 par value 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 stock, 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.
“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).
“Transaction
Documents” means this Securities Purchase Agreement dated September 11, 2023, these Warrants, such other Warrants as contemplated
in the Securities Purchase Agreement, the Lock-Up Agreement and all exhibits and schedules thereto and hereto and any other documents
or agreements executed in connection with the transactions contemplated hereunder.
“Transfer
Agent” means VStock Transfer, LLC, the current transfer agent of the Company, with a mailing address of 18 Lafayette Place,
Woodmere, New York 11598 and an email address of shay@vstocktransfer.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 Ordinary Shares purchase warrants issued by the Company pursuant to the Securities Purchase Agreement.
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 substantially in the form attached hereto as Exhibit
A (the “Notice of Exercise”). Within the earlier of (i) two (2) Trading Days 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 Warrant 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) Trading 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 Warrant Share shall be $1.13, subject to adjustment hereunder (the “Exercise
Price”).
c)
Cashless Exercise. If at any time after the Issue Date 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 also 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) at
the option of the Holder, either (y) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise or
(z) the Bid Price of the Ordinary Shares on the principal Trading Market as reported by Bloomberg L.P. 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; |
| (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).
d)
Mechanics of Exercise.
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 earliest of (i) two (2) Trading Days after the delivery to the Company of the Notice of Exercise, (ii) one (1) Trading Day after delivery
of the aggregate Exercise Price to the Company and (iii) 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) two (2) Trading
Days and (ii) the number of Trading Days comprising the Standard Settlement Period following delivery of the Notice of Exercise. Notwithstanding
anything herein to the contrary, upon delivery of the Notice of Exercise, the Holder shall be deemed for purposes of Regulation SHO under
the Exchange Act to have become the holder of the Warrant Shares irrespective of the date of delivery of the Warrant Shares. 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, provided
that payment of the aggregate Exercise Price (other than in the instance of a cashless exercise) is received by the Company on or prior
to the Warrant Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each
$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),
$10 per Trading Day (increasing to $20 per Trading Day on the fifth Trading Day after such liquidated damages begin to accrue) 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, 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 and return any amount received by the Company in respect of the Exercise
Price for those Warrant Shares (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 $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 $10,000, under clause
(A) of the immediately preceding sentence the Company shall be required to pay the Holder $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 as Exhibit B 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 shareholder books register of members 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, unexercised 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
unconverted 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 (1) 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)
Share Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a share 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 any shares 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 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) Share
Combination Event Adjustment. In addition to the adjustments set forth in this Section 3, if at any time on or after the Issue
Date there occurs any share split, share dividend, bonus share issuance, share combination recapitalization or other similar
transaction involving the Ordinary Shares (each, a “Share Combination Event”, and such date thereof, the
“Share Combination Event Date”) and the lowest VWAP during the 5 consecutive Trading Days commencing on the Share
Combination Event Date (the “Event Market Price”)(provided if the Share Combination Event is effective after close of
Trading on the primary Trading Market, then commencing on the next Trading Day which period shall be the “Share Combination
Adjustment Period”) is less than the Exercise Price then in effect (after giving effect to the adjustment in clause 3(a)
above), then at the close of trading on the primary Trading Market on the last day of the Share Combination Adjustment Period, the
Exercise Price then in effect on such 5th Trading Day shall be reduced (but in no event increased) to the Event Market Price and the
number of Warrant Shares issuable hereunder shall be increased such that the aggregate Exercise Price payable hereunder, after
taking into account the decrease in the Exercise Price, shall be equal to the aggregate Exercise Price on the Issuance Date. For the
avoidance of doubt, if the adjustment in the immediately preceding sentence would otherwise result in an increase in the Exercise
Price hereunder, no adjustment shall be made, and if this Warrant is exercised, on any given Exercise Date during the Share
Combination Adjustment Period, solely with respect to such portion of this Warrant exercised on such applicable Exercise Date, such
applicable Share Combination Adjustment Period shall be deemed to have ended on, and included, the Trading Day immediately prior to
such Exercise Date and the Event Market Price on such applicable Exercise Date will be the lowest VWAP of the Ordinary Shares
immediately prior to the Share Combination Event Date and ending on, and including the Trading Day immediately prior to such
Exercise Date.
c) Subsequent
Equity Sales. If, at any time while this Warrant is outstanding (such period, the “Adjustment Period”), the Company issues,
sells, enters into an agreement to sell, or grants any option to purchase, or sells, enters into an agreement to sell, or grants any
right to reprice, or otherwise disposes of or issues (or announces any offer, sale, grant or any option to purchase or other disposition),
or, in accordance with this Section 3(c), is deemed to have issued or sold, any Ordinary Shares or Ordinary Share Equivalents (excluding
any Excluded Securities (as defined below) issued or sold or deemed to have been issued or sold) for a consideration per share (the “New
Issuance Price”) less than a price equal to the Exercise Price in effect immediately prior to such issue or sale or deemed issuance
or sale (such Exercise Price then in effect is referred to as the “Applicable Price”) (the foregoing a “Dilutive
Issuance”), then simultaneously with the consummation (or, if earlier, the announcement) of such Dilutive Issuance, the Exercise
Price then in effect shall be reduced to an amount equal to the New Issuance Price. Notwithstanding the foregoing, no adjustments shall
be made, paid or issued under this Section 3(c) in respect of an Exempt Issuance. 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(c), 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(c), upon the occurrence of any Dilutive Issuance, the Holder is
entitled to receive a number of Warrant Shares based upon the New Issuance Price regardless of whether the Holder accurately refers to
the New Issuance Price in the Notice of Exercise. If the Company enters into a Variable Rate Transaction, the Company shall be deemed
to have issued Ordinary Share or Ordinary Share Equivalents at the lowest possible price, conversion price or exercise price at which
such securities may be issued, converted or exercised. “Variable Rate Transaction” means a transaction in which the Company
(i) issues or sells any Ordinary Shares or Ordinary Share Equivalents 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, other than in connection
with customary anti-dilution adjustments resulting from future stock splits, stock dividends or similar transactions, or (ii) issues
or sells any amortizing convertible security that amortizes prior to its maturity date, whereby it is required to or has the option to
(or the investor in such security has the option to require the Company to) make such amortization payments in Ordinary Shares (whether
or not such payments in stock are subject to certain equity conditions) or (iii) enters into, or effects a transaction under, any agreement,
including, but not limited to, an equity line of credit or “at-the-market” offering, whereby it may sell securities at a
future determined price, regardless of whether shares pursuant to such agreement have actually been issued and regardless of whether
such agreement is subsequently canceled, provided that any issuance of shares upon the exercise of the Warrants will not be deemed a
Variable Rate Transaction.
| i. | Calculation of Consideration Received. If any Option
and/or Common Share Equivalents and/or Adjustment Right is issued in connection with the issuance or sale or deemed issuance or sale
of any other securities of the Company (as determined by the Holder, the “Primary Security”, and such Option and/or
Common Share Equivalents and/or Adjustment Right, the “Secondary Securities” and together with the Primary Security,
each a “Unit”), together comprising one integrated transaction, the aggregate consideration per Common Share with
respect to such Primary Security shall be deemed to be the lowest of (x) the purchase price of such Unit, (y) if such Primary Security
is an Option and/or Common Share Equivalent, the lowest price per share for which one Common Share is at any time issuable upon the exercise
or conversion of the Primary Security and (z) the lowest VWAP on any Trading Day during the five (5) Trading Day period (the “Adjustment
Period”) immediately following the public announcement of such Dilutive Issuance (for the avoidance of doubt, if such public
announcement is released prior to the opening of the applicable Trading Market on a Trading Day, such Trading Day shall be the first
Trading Day in such five Trading Day period and if this Warrant is exercised, on any given Exercise Date during any such Adjustment Period,
solely with respect to such portion of this Warrant converted on such applicable Exercise Date, such applicable Adjustment Period shall
be deemed to have ended on, and included, the Trading Day immediately prior to such Exercise Date). If any Common Shares, Stock, Options
or Common Share Equivalents are issued or sold or deemed to have been issued or sold for cash, the consideration received therefor will
be deemed to be the net amount of consideration received by the Company therefor. If any Common Shares, Options or Common Share Equivalents
are issued or sold for a consideration other than cash, the amount of such consideration received by the Company will be the fair value
of such consideration, except where such consideration consists of publicly traded securities, in which case the amount of consideration
received by the Company for such securities will be the arithmetic average of the VWAPs of such security for each of the five (5) Trading
Days immediately preceding the date of receipt. If any Common Shares, Options or Common Share Equivalents are issued to the owners of
the non-surviving entity in connection with any merger in which the Company is the surviving entity, the amount of consideration therefor
will be deemed to be the fair value of such portion of the net assets and business of the non-surviving entity as is attributable to
such Common Shares, Options or Common Share Equivalents (as the case may be). The fair value of any consideration other than cash or
publicly traded securities will be determined jointly by the Company and the Holder. If such parties are unable to reach agreement within
ten (10) days after the occurrence of an event requiring valuation (the “Valuation Event”), the fair value of such
consideration will be determined within five (5) Trading Days after the tenth (10th) day following such Valuation Event by an independent,
reputable appraiser jointly selected by the Company and the Holder. The determination of such appraiser shall be final and binding upon
all parties absent manifest error and the fees and expenses of such appraiser shall be borne by the Company. For purposes of hereof,
“Adjustment Right” means any right granted with respect to any securities issued in connection with, or with respect
to, any issuance or sale (or deemed issuance or sale in accordance with this Section 3(c) of Common Shares that could result in a decrease
in the net consideration received by the Company in connection with, or with respect to, such securities (including, without limitation,
any cash settlement rights, cash adjustment or other similar rights). |
d) 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 shares, warrants, securities or other property pro rata to all (or
substantially all) of 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).
e) 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 all (or substantially all) 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 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). To the extent that this Warrant has not been partially or completely exercised at the time of such
Distribution, such portion of the Distribution shall be held in abeyance for the benefit of the Holder until the Holder has
exercised this Warrant.
f) 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 other than to an Affiliate of the Company, (iii) any,
direct or indirect, purchase offer, tender offer or exchange offer as approved or recommended by the Board of Directors or a
committee thereof 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 50% or more of the outstanding Ordinary Shares or 50%
or more 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 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 50% or more of the outstanding Ordinary Shares
or 50% or more 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 common
stock/shares of the Successor Entity (which 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 contemplated 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 greater of (1)
100% and (2) the 100 day volatility as obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization
factor) as of the Trading Day immediately following the public announcement of the applicable contemplated Fundamental Transaction,
(C) the underlying price per share used in such calculation shall be the greater of (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 and (ii) the
highest VWAP during the period beginning on the Trading Day immediately preceding the public announcement of the applicable
contemplated Fundamental Transaction (or the consummation of the applicable Fundamental Transaction, if earlier) and ending on the
Trading Day of the Holder’s request pursuant to this Section 3(e) and (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 (5) Business Days after 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 and the other Transaction Documents in accordance with the provisions of this Section 3(f) 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 that 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 prior 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.
g)
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.
h)
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 Share rights or warrants to subscribe for or purchase any
shares 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 (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 10 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 Report of Foreign
Private Issuer 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.
i)
Voluntary Adjustment by Company. Subject to the rules and regulations of the Trading Market and the consent of the Holder,
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.
Section 4. Transfer
of Warrant.
a)
Transferability. 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 as Exhibit B 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 Shareholder until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights,
dividends or other rights as a shareholder 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 have sufficient authorized and unissued Ordinary Shares to provide for the
issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant. 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 and upon registration in the Register of Members of the Company, be duly authorized,
validly issued, fully paid and nonassessable (which means that no further sums are required to be paid by the holders thereof in connection
with the issue thereof) 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 memorandum
and articles of association 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 that 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) 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. Notwithstanding
the foregoing, nothing in this paragraph shall limit or restrict the federal district court in which a Holder may bring a claim under
the federal securities laws.
f) 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.
g) 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. No provision of this Warrant shall be construed
as a waiver by the Holder of any rights which the Holder may have under the federal securities laws and the rules and regulations of
the Commission thereunder. Without limiting any other provision of this Warrant or the Purchase Agreement, 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.
h) 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 Building #A, Floor 2, Changzhou Institute of Dalian University of Technology, Science and Education Town,
Wujin District, Changzhou City, Jiangsu, China 213164, Attention: Jianhui Ye, Chief Executive Officer, email address: yejianhui@ez-go.com.cn,
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 Report of Foreign Private Issuer on Form 6-K.
i) 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 shareholder of the Company, whether such liability is asserted by the Company
or by creditors of the Company.
j) 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.
k) 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.
l)
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, on the other hand.
m)
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.
n)
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.
********************
[EZGO Investor RD Warrant Signature Page Follows]
[EZGO Investor RD Warrant Signature Page]
IN WITNESS WHEREOF, the Company
has caused this RD Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.
|
EZGO TECHNOLOGIES LTD. |
|
|
|
|
By: |
|
|
Name: |
Jianhui Ye |
|
Its: |
Chief Executive Officer |
Exhibit A
NOTICE OF EXERCISE
To: EZGO
TECHNOLOGIES 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: |
|
Exhibit B
ASSIGNMENT FORM
(To assign the foregoing
Warrant, execute this form and supply required information. Do not use this form to exercise the Warrant to purchase shares.)
FOR VALUE RECEIVED, the foregoing
Warrant and all rights evidenced thereby are hereby assigned to
Name: |
|
|
(Please Print) |
|
|
Address: |
|
|
(Please Print)
|
|
|
Phone Number: |
|
Email Address: |
|
Dated: _______________ __, ______ |
|
Holder’s Signature: |
|
|
Holder’s Address: |
|
|
Exhibit 4.2
EXCHANGE WARRANT TO PURCHASE ORDINARY SHARES
EZGO TECHNOLOGIES LTD.
Warrant Shares: [●] |
Initial Exercise Date: [●], 2023
|
|
Issue Date: [●], 2023 |
THIS EXCHANGE WARRANT TO PURCHASE
ORDINARY SHARES (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
the Initial Exercise Date and on or prior to 5:00 p.m. (New York City time) on [●], 2026 (the “Termination Date”)
but not thereafter, to subscribe for and purchase from EZGO Technologies Ltd., a British Virgin Islands business company (the “Company”),
up to [●] ordinary shares (as subject to adjustment hereunder, the “Warrant Shares”). The purchase price of one
(1) 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 or in the Securities Purchase Agreement dated September
11, 2023, 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.
“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.
“Ordinary
Share” means the ordinary shares of the Company, $0.001 par value 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 stock, 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.
“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).
“Transaction
Documents” means this Securities Purchase Agreement dated September 11, 2023, these Warrants, such other Warrants as contemplated
in the Securities Purchase Agreement, the Lock-Up Agreement and all exhibits and schedules thereto and hereto and any other documents
or agreements executed in connection with the transactions contemplated hereunder.
“Transfer
Agent” means VStock Transfer, LLC, the current transfer agent of the Company, with a mailing address of 18 Lafayette Place,
Woodmere, New York 11598 and an email address of shay@vstocktransfer.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 Ordinary Shares purchase warrants issued by the Company pursuant to the Securities Purchase Agreement.
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 substantially in the form attached hereto as Exhibit A (the “Notice
of Exercise”). Within the earlier of (i) two (2) Trading Days 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 Warrant 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) Trading 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 Warrant Share shall be $1.13, subject to adjustment hereunder (the “Exercise Price”).
c) Cashless
Exercise. If at any time after the Issue Date 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 also 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) at
the option of the Holder, either (y) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise or
(z) the Bid Price of the Ordinary Shares on the principal Trading Market as reported by Bloomberg L.P. 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; |
| (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).
The Holder may also
effect an “alternative cashless exercise”. In such event, the aggregate number of Warrant Shares issuable in such alternative
cashless exercise pursuant to any given Notice of Exercise electing to effect an alternative cashless exercise shall equal the aggregate
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. Notwithstanding anything herein to the contrary, on the Termination
Date, this Warrant shall be automatically exercised via cashless exercise pursuant to this Section 2(c) (including an alternative cashless
exercise pursuant to this paragraph).
d) Mechanics
of Exercise.
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 earliest
of (i) two (2) Trading Days after the delivery to the Company of the Notice of Exercise, (ii) one (1) Trading Day after delivery of the
aggregate Exercise Price to the Company and (iii) 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) two (2) Trading Days and (ii) the
number of Trading Days comprising the Standard Settlement Period following delivery of the Notice of Exercise. Notwithstanding anything
herein to the contrary, upon delivery of the Notice of Exercise, the Holder shall be deemed for purposes of Regulation SHO under the Exchange
Act to have become the holder of the Warrant Shares irrespective of the date of delivery of the Warrant Shares. 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, provided that
payment of the aggregate Exercise Price (other than in the instance of a cashless exercise) is received by the Company on or prior to
the Warrant Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $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),
$10 per Trading Day (increasing to $20 per Trading Day on the fifth Trading Day after such liquidated damages begin to accrue) 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, 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 and return
any amount received by the Company in respect of the Exercise Price for those Warrant Shares (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 $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 $10,000, under clause (A) of the immediately preceding sentence the Company shall be required to pay the Holder $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 as Exhibit B 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 shareholder books register of members 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, unexercised 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 unconverted 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 (1) 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) Share
Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a share 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 any shares 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 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) Share
Combination Event Adjustment. In addition to the adjustments set forth in this Section 3, if at any time on or after the Issue Date
there occurs any share split, share dividend, bonus share issuance, share combination recapitalization or other similar transaction involving
the Ordinary Shares (each, a “Share Combination Event”, and such date thereof, the “Share Combination Event
Date”) and the lowest VWAP during the 5 consecutive Trading Days commencing on the Share Combination Event Date (the “Event
Market Price”)(provided if the Share Combination Event is effective after close of Trading on the primary Trading Market, then commencing
on the next Trading Day which period shall be the “Share Combination Adjustment Period”) is less than the Exercise Price then
in effect (after giving effect to the adjustment in clause 3(a) above), then at the close of trading on the primary Trading Market on
the last day of the Share Combination Adjustment Period, the Exercise Price then in effect on such 5th Trading Day shall be reduced (but
in no event increased) to the Event Market Price and the number of Warrant Shares issuable hereunder shall be increased such that the
aggregate Exercise Price payable hereunder, after taking into account the decrease in the Exercise Price, shall be equal to the aggregate
Exercise Price on the Issuance Date. For the avoidance of doubt, if the adjustment in the immediately preceding sentence would otherwise
result in an increase in the Exercise Price hereunder, no adjustment shall be made, and if this Warrant is exercised, on any given Exercise
Date during the Share Combination Adjustment Period, solely with respect to such portion of this Warrant exercised on such applicable
Exercise Date, such applicable Share Combination Adjustment Period shall be deemed to have ended on, and included, the Trading Day immediately
prior to such Exercise Date and the Event Market Price on such applicable Exercise Date will be the lowest VWAP of the Ordinary Shares
immediately prior to the Share Combination Event Date and ending on, and including the Trading Day immediately prior to such Exercise
Date.
c) Subsequent
Equity Sales. If, at any time while this Warrant is outstanding (such period, the “Adjustment Period”), the Company issues,
sells, enters into an agreement to sell, or grants any option to purchase, or sells, enters into an agreement to sell, or grants any
right to reprice, or otherwise disposes of or issues (or announces any offer, sale, grant or any option to purchase or other disposition),
or, in accordance with this Section 3(c), is deemed to have issued or sold, any Ordinary Shares or Ordinary Share Equivalents (excluding
any Excluded Securities (as defined below) issued or sold or deemed to have been issued or sold) for a consideration per share (the “New
Issuance Price”) less than a price equal to the Exercise Price in effect immediately prior to such issue or sale or deemed issuance
or sale (such Exercise Price then in effect is referred to as the “Applicable Price”) (the foregoing a “Dilutive
Issuance”), then simultaneously with the consummation (or, if earlier, the announcement) of such Dilutive Issuance, the Exercise
Price then in effect shall be reduced to an amount equal to the New Issuance Price. Notwithstanding the foregoing, no adjustments shall
be made, paid or issued under this Section 3(c) in respect of an Exempt Issuance. 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(c), 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(c), upon the occurrence of any Dilutive Issuance, the Holder is
entitled to receive a number of Warrant Shares based upon the New Issuance Price regardless of whether the Holder accurately refers to
the New Issuance Price in the Notice of Exercise. If the Company enters into a Variable Rate Transaction, the Company shall be deemed
to have issued Ordinary Share or Ordinary Share Equivalents at the lowest possible price, conversion price or exercise price at which
such securities may be issued, converted or exercised. “Variable Rate Transaction” means a transaction in which the Company
(i) issues or sells any Ordinary Shares or Ordinary Share Equivalents 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, other than in connection
with customary anti-dilution adjustments resulting from future stock splits, stock dividends or similar transactions, or (ii) issues
or sells any amortizing convertible security that amortizes prior to its maturity date, whereby it is required to or has the option to
(or the investor in such security has the option to require the Company to) make such amortization payments in Ordinary Shares (whether
or not such payments in stock are subject to certain equity conditions) or (iii) enters into, or effects a transaction under, any agreement,
including, but not limited to, an equity line of credit or “at-the-market” offering, whereby it may sell securities at a
future determined price, regardless of whether shares pursuant to such agreement have actually been issued and regardless of whether
such agreement is subsequently canceled, provided that any issuance of shares upon the exercise of the Warrants will not be deemed a
Variable Rate Transaction.
| i. | Calculation of Consideration Received. If any Option and/or Common Share Equivalents and/or Adjustment
Right is issued in connection with the issuance or sale or deemed issuance or sale of any other securities of the Company (as determined
by the Holder, the “Primary Security”, and such Option and/or Common Share Equivalents and/or Adjustment Right, the
“Secondary Securities” and together with the Primary Security, each a “Unit”), together comprising
one integrated transaction, the aggregate consideration per Common Share with respect to such Primary Security shall be deemed to be the
lowest of (x) the purchase price of such Unit, (y) if such Primary Security is an Option and/or Common Share Equivalent, the lowest price
per share for which one Common Share is at any time issuable upon the exercise or conversion of the Primary Security and (z) the lowest
VWAP on any Trading Day during the five (5) Trading Day period (the “Adjustment Period”) immediately following the public
announcement of such Dilutive Issuance (for the avoidance of doubt, if such public announcement is released prior to the opening of the
applicable Trading Market on a Trading Day, such Trading Day shall be the first Trading Day in such five Trading Day period and if this
Warrant is exercised, on any given Exercise Date during any such Adjustment Period, solely with respect to such portion of this Warrant
converted on such applicable Exercise Date, such applicable Adjustment Period shall be deemed to have ended on, and included, the Trading
Day immediately prior to such Exercise Date). If any Common Shares, Stock, Options or Common Share Equivalents are issued or sold or deemed
to have been issued or sold for cash, the consideration received therefor will be deemed to be the net amount of consideration received
by the Company therefor. If any Common Shares, Options or Common Share Equivalents are issued or sold for a consideration other than cash,
the amount of such consideration received by the Company will be the fair value of such consideration, except where such consideration
consists of publicly traded securities, in which case the amount of consideration received by the Company for such securities will be
the arithmetic average of the VWAPs of such security for each of the five (5) Trading Days immediately preceding the date of receipt.
If any Common Shares, Options or Common Share Equivalents are issued to the owners of the non-surviving entity in connection with any
merger in which the Company is the surviving entity, the amount of consideration therefor will be deemed to be the fair value of such
portion of the net assets and business of the non-surviving entity as is attributable to such Common Shares, Options or Common Share Equivalents
(as the case may be). The fair value of any consideration other than cash or publicly traded securities will be determined jointly by
the Company and the Holder. If such parties are unable to reach agreement within ten (10) days after the occurrence of an event requiring
valuation (the “Valuation Event”), the fair value of such consideration will be determined within five (5) Trading
Days after the tenth (10th) day following such Valuation Event by an independent, reputable appraiser jointly selected by the Company
and the Holder. The determination of such appraiser shall be final and binding upon all parties absent manifest error and the fees and
expenses of such appraiser shall be borne by the Company. For purposes of hereof, “Adjustment Right” means any right
granted with respect to any securities issued in connection with, or with respect to, any issuance or sale (or deemed issuance or sale
in accordance with this Section 3(c) of Common Shares that could result in a decrease in the net consideration received by the Company
in connection with, or with respect to, such securities (including, without limitation, any cash settlement rights, cash adjustment or
other similar rights). |
d) 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 shares, warrants, securities or other property pro rata to all (or substantially
all) of 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).
e) 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 all (or substantially all) 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 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). To the extent that this Warrant has not been partially or completely exercised at the time of such
Distribution, such portion of the Distribution shall be held in abeyance for the benefit of the Holder until the Holder has exercised
this Warrant.
f) 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 other than to an Affiliate of the Company, (iii) any, direct or indirect, purchase offer, tender offer
or exchange offer as approved or recommended by the Board of Directors or a committee thereof 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 50% or more of the outstanding Ordinary Shares or 50% or more 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
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 50% or more of the outstanding
Ordinary Shares or 50% or more 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 common stock/shares of the Successor Entity (which 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 contemplated 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 greater of (1)
100% and (2) the 100 day volatility as obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor)
as of the Trading Day immediately following the public announcement of the applicable contemplated Fundamental Transaction, (C) the underlying
price per share used in such calculation shall be the greater of (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 and (ii) the highest VWAP during the period
beginning on the Trading Day immediately preceding the public announcement of the applicable contemplated Fundamental Transaction (or
the consummation of the applicable Fundamental Transaction, if earlier) and ending on the Trading Day of the Holder’s request pursuant
to this Section 3(e) and (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 (5) Business Days after 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 and the other Transaction Documents in accordance with the provisions of this Section 3(f) 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 that 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 prior 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.
g) 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.
h) 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 Share rights or warrants to subscribe for or purchase any shares 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 (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 10 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 Report of Foreign
Private Issuer 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.
i) Voluntary
Adjustment by Company. Subject to the rules and regulations of the Trading Market and the consent of the Holder, 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.
Section 4. Transfer
of Warrant.
a) Transferability.
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 as Exhibit B 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 Shareholder until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights, dividends
or other rights as a shareholder 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 have sufficient authorized and unissued Ordinary Shares to provide for the
issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant. 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 and upon registration in the Register of Members of the Company, be duly authorized,
validly issued, fully paid and nonassessable (which means that no further sums are required to be paid by the holders thereof in connection
with the issue thereof) 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 memorandum
and articles of association 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 that 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) 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. Notwithstanding the foregoing, nothing
in this paragraph shall limit or restrict the federal district court in which a Holder may bring a claim under the federal securities
laws.
f) 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.
g) 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. No provision of this Warrant shall be construed
as a waiver by the Holder of any rights which the Holder may have under the federal securities laws and the rules and regulations of the
Commission thereunder. Without limiting any other provision of this Warrant or the Purchase Agreement, 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.
h) 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 Building #A, Floor 2, Changzhou Institute of Dalian University of Technology, Science and Education Town, Wujin District,
Changzhou City, Jiangsu, China 213164, Attention: Jianhui Ye, Chief Executive Officer, email address: yejianhui@ez-go.com.cn, 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 Report of Foreign Private Issuer on Form 6-K.
i) 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 shareholder of the Company, whether such liability is asserted by the Company or by creditors of
the Company.
j) 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.
k) 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.
l) 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, on the other hand.
m) 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.
n) 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.
********************
[EZGO Investor RD Warrant Signature Page Follows]
[EZGO Investor RD Warrant Signature Page]
IN WITNESS WHEREOF, the Company
has caused this RD Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.
|
EZGO TECHNOLOGIES LTD. |
|
|
|
By: |
|
|
Name: |
Jianhui Ye |
|
Its: |
Chief Executive Officer |
|
|
Exhibit A
NOTICE OF EXERCISE
To: EZGO
TECHNOLOGIES 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: |
|
Exhibit B
ASSIGNMENT FORM
(To assign the foregoing
Warrant, execute this form and supply required information. Do not use this form to exercise the Warrant to purchase shares.)
FOR VALUE RECEIVED, the foregoing
Warrant and all rights evidenced thereby are hereby assigned to
Name: |
|
|
(Please Print) |
|
|
Address: |
|
|
(Please Print)
|
|
|
Phone Number: |
|
Email Address: |
|
Dated: _______________ __, ______ |
|
Holder’s Signature: |
|
|
Holder’s Address: |
|
|
Exhibit 5.1
Our ref: CHX/653104-000013/35087113v2
EZGO Technologies Ltd.
Kingston Chambers
P.O. Box 173
Road Town, Tortola
British Virgin Islands
13 September 2023
Dear Sirs
EZGO Technologies Ltd. (the “Company”)
We have acted as counsel as to British Virgin
Islands law to the Company and have been asked to provide this legal opinion in connection with the Company’s registration statement
on Form F-3 (the “Registration Statement”), including the base prospectus dated 30 November 2022 (the “Base
Prospectus”) and the prospectus supplement dated 11 September 2023 (the Base Prospectus and the Prospectus Supplement together,
the “Prospectus”) including all amendments or supplements thereto, filed with the United States Securities and Exchange
Commission (the “Commission”) under the United States Securities Act of 1933, as amended (the “SEC Act”)
for the purposes of, registering with the Commission under the SEC Act, the offering by the Company (the “Offering”)
of:
| a) | up to 8,498,125 ordinary shares of the Company, with a par value of US$0.001 each (the “Ordinary
Shares”); |
| a) | certain Ordinary Share Purchase Warrants, each Ordinary Share Purchase Warrant exercisable to purchase
one ordinary share of the Company with a par value of US$0.001 each in an amount up to 8,498,125 ordinary shares (the “Ordinary
Share Purchase Warrant Shares”); |
| b) | certain Exchange Warrants, each Exchange Warrant exercisable to purchase one ordinary share of the Company
with a par value of US$0.001 up to 33,992,500 ordinary shares (the “Exchange Warrant Shares” together with the Ordinary
Share Purchase Warrant Shares, the “Warrant Shares”). |
This opinion letter is given in accordance with
the terms of the Legal Matters section of the Prospectus.
We have reviewed originals, copies, drafts or
conformed copies of the following documents:
| 1.1 | The public records of the Company on file and available for public
inspection at the Registry of Corporate Affairs in the British Virgin Islands (the “Registry of Corporate Affairs”)
on 12 September 2023, including the Company’s Certificate of Incorporation and its Memorandum and Articles of Association (the “Memorandum
and Articles”). |
| 1.2 | The records of proceedings available from a search of the electronic
records maintained on the Judicial Enforcement Management System from 1 January 2000 and available for inspection on 12 September 2023
at the British Virgin Islands High Court Registry (the “High Court Registry”). |
| 1.3 | The written resolutions of the board of directors of the Company dated
13 September 2023 (the “Resolutions”). |
| 1.4 | A Certificate of Incumbency dated 6 September 2023, issued by Maples Corporate Services (BVI) Limited,
the Company’s registered agent (the “Registered Agent’s Certificate”). |
| 1.5 | A certificate of good standing with respect to the Company issued by
the Registrar of Corporate Affairs dated 11 September 2023 (the “Certificate of Good Standing”). |
| 1.6 | A certificate from a director of the Company (the “Director’s Certificate”). |
| 1.7 | The Registration Statement. |
| 1.9 | A securities purchase agreement dated 11 September 2023 (the “SPA”)
made between the Company and each purchaser specified therein on the signature pages thereto (the “Purchasers” and
each, a “Purchaser”). |
| 1.10 | The form of ordinary share purchase warrant (each, an “Ordinary Share Purchase Warrant”)
to be entered into by the Company in favour of each Purchaser. |
| 1.11 | The form of exchange warrant (each, an “Exchange Warrant” and together with the Ordinary
Share Purchase Agreement, the “Warrants”) to be entered into by the Company in favour of each Purchaser. |
The documents listed in paragraphs 1.9 and 1.11
(inclusive) above shall be referred to collectively herein as the “Documents”.
The following opinions are given only as to, and
based on, circumstances and matters of fact existing and known to us on the date of this opinion letter. These opinions only relate to
the laws of the British Virgin Islands which are in force on the date of this opinion letter. In giving the following opinions we have
relied (without further verification) upon the completeness and accuracy, as at the date of this opinion letter, of the Registered Agent’s
Certificate, the Certificate of Good Standing and the Director’s Certificate. We have also relied upon the following assumptions, which
we have not independently verified:
| 2.1 | The Documents have been or will be authorised and duly executed and unconditionally delivered by or on
behalf of all relevant parties in accordance with all relevant laws (other than, with respect to the Company, the laws of the British
Virgin Islands). |
| 2.2 | The Documents are, or will be, legal, valid, binding and enforceable against all relevant parties in accordance
with their terms under the laws of the State of New York (the “Relevant Law”) and all other relevant laws (other than,
with respect to the Company, the laws of the British Virgin Islands). |
| 2.3 | The choice of the Relevant Law as the governing law of the Documents has been made in good faith and would
be regarded as a valid and binding selection which will be upheld by the courts of the State of New York and any other relevant jurisdiction
(other than the British Virgin Islands) as a matter of the Relevant Law and all other relevant laws (other than the laws of the British
Virgin Islands). |
| 2.4 | Where a Document has been provided to us in draft or undated form, it will be duly executed, dated and
unconditionally delivered by all parties thereto in materially the same form as the last version provided to us and, where we have been
provided with successive drafts of a Document marked to show changes to a previous draft, all such changes have been accurately marked. |
| 2.5 | Copies of documents, conformed copies or drafts of documents provided to us are true and complete copies
of, or in the final forms of, the originals. |
| 2.6 | All signatures, initials and seals are genuine. |
| 2.7 | That all public records of the Company which we have examined are accurate and that the information disclosed
by the searches which we conducted against the Company at the Registry of Corporate Affairs and the High Court Registry is true and complete
and that such information has not since then been altered and that such searches did not fail to disclose any information which had been
delivered for registration but did not appear on the public records at the date of our searches. |
| 2.8 | The Company will have sufficient authorised and unissued ordinary shares under the Memorandum and Articles
at the time any Ordinary Shares or Warrant Shares are issued. |
| 2.9 | No invitation has been or will be made by or on behalf of the Company to the public in the British Virgin
Islands to subscribe for any of the Ordinary Shares or Warrant Shares. |
| 2.10 | The Company is not a sovereign entity of any state and is not a subsidiary, direct or indirect of any
sovereign entity or state. |
| 2.11 | The Ordinary Shares issued pursuant to the SPA, the Warrant Shares to be issued pursuant to any Warrants
have been, or will be, duly registered, and will continue to be registered, in the Company’s register of members. |
| 2.12 | The Company has received, or will receive, cash consideration or non-cash consideration in consideration
for the issue of the Ordinary Shares, and that: |
| (a) | none of the Ordinary Shares have been, or will be, issued for less than their par value; and |
| (b) | to the extent that any Ordinary Shares are, or will be, issued, in whole or in part, for non-cash consideration,
the value of the non-cash consideration and cash consideration, if any, is not less than the amount credited or to be credited for such
Ordinary Shares. |
| 2.13 | The Warrant Shares will be issued for cash consideration, or, to the extent that any Warrant Shares are
to be issued, in whole or in part, for non-cash consideration, the Company has passed or will pass a resolution of directors in respect
of such Warrant Shares stating: |
| (a) | the amount to be credited for the issue of such Warrant Shares; and |
| (b) | that, in their opinion, the present cash value of the non-cash consideration and cash consideration, if
any, is not less than the amount to be credited for such Warrant Shares. |
| 2.14 | At the time of the exercise of each Warrant into a Warrant Share in accordance with the terms and provisions
of the Warrants (each such exercise, a “Warrant Exercise”): |
| (a) | the laws of the British Virgin Islands (including the Act (as defined below)) will not have changed in
such way as to materially impact the Warrant Exercise; |
| (b) | the Company will have sufficient authorised but unissued ordinary shares to effect the Warrant Exercise
in accordance with the Warrants, the Memorandum and Articles and the Act; |
| (c) | the Company will not have been struck off or placed in liquidation; |
| (d) | the issue price for each Warrant Share issued upon Warrant Exercise will not be less than the par value
of such Warrant Share; and |
| (e) | the terms and provisions of the Warrant relating to the Warrant Exercise and the terms of the Memorandum
and Articles will not have been altered, amended or restated or subject to any adjustment. |
| 2.15 | There is nothing under any law (other than the laws of the British Virgin Islands) which would or might
affect the opinions set out below. We have not made any investigation of the laws, rules or regulations of any jurisdiction other than
the laws of the British Virgin Islands. |
Save as aforesaid we have not been instructed
to undertake and have not undertaken any further enquiry or due diligence in relation to the transaction the subject of this opinion.
Based upon, and subject to, the foregoing assumptions
and the qualifications set out below, and having regard to such legal considerations as we deem relevant, we are of the opinion that:
| 3.1 | The Company is a company limited by shares incorporated with limited liability under the BVI Business
Companies Act (as amended) (the “Act”), is in good standing at the Registry of Corporate Affairs, is validly existing
under the laws of the British Virgin Islands and possesses the capacity to sue and be sued in its own name. |
| 3.2 | The Ordinary Shares to be offered and issued by the Company as contemplated by the Prospectus have been
duly authorised for issue, and when issued by the Company against payment in full of the consideration as set out in the SPA and as described
in the Prospectus and in accordance with the terms set out in the SPA and as described in the Prospectus, such Ordinary Shares will be
validly issued, fully paid and non-assessable. As a matter of British Virgin Islands law, a share is only issued when it has been entered
in the register of members. |
| 3.3 | The Warrant Shares to be offered and issued by the Company upon the exercise of the Ordinary Share Purchase
Warrants in accordance with the Ordinary Share Purchase Warrant and issued by the Company as contemplated by the Ordinary Share Purchase
Warrant and as described in the Prospectus have been duly authorised for issue, and when issued by the Company against payment in full
of the consideration as set out in the Ordinary Share Purchase Warrant and as described in the Prospectus and in accordance with the terms
set out in the Ordinary Share Purchase Warrant such Warrant Shares will be validly issued, fully paid and non-assessable. As a matter
of British Virgin Islands law, a share is only issued when it has been entered in the register of members. |
| 3.4 | The Warrant Shares to be offered and issued by the Company upon the exercise of the Exchange Warrants
in accordance with the Exchange Warrant and issued by the Company as contemplated by the Exchange Warrant and as described in the Prospectus
have been duly authorised for issue, and when issued by the Company against payment in full of the consideration as set out in the Exchange
Warrant and as described in the Prospectus and in accordance with the terms set out in the Exchange Warrant such Warrant Shares will be
validly issued, fully paid and non-assessable. As a matter of British Virgin Islands law, a share is only issued when it has been entered
in the register of members. |
| 3.5 | The execution, delivery and performance of the Documents have been authorised by and on behalf of the
Company and, once the Documents have been executed and delivered by any director or officer of the Company, the Documents will be duly
executed and delivered on behalf of the Company and will constitute the legal, valid and binding obligations of the Company enforceable
in accordance with their terms. |
| 3.6 | Based solely on our review of the Memorandum and Articles, the Company is authorised to issue a maximum
of 500,010,000 shares divided into 500,000,000 Ordinary Shares of US$0.001 par value each and 10,000 Preferred Shares of no par value
each. |
The opinions expressed above are subject to the
following qualifications:
| 4.1 | The obligations assumed by the Company under the Documents will not necessarily be enforceable in all
circumstances in accordance with their terms. In particular: |
| (a) | enforcement may be limited by bankruptcy, insolvency, liquidation, reorganisation, readjustment of debts
or moratorium or other laws of general application relating to protecting or affecting the rights of creditors; |
| (b) | enforcement may be limited by general principles of equity. For example, equitable remedies such as specific
performance may not be available, inter alia, where damages are considered to be an adequate remedy; |
| (c) | where obligations are to be performed in a jurisdiction outside the British Virgin Islands, they may not
be enforceable in the British Virgin Islands to the extent that performance would be illegal under the laws of that jurisdiction; and |
| (d) | some claims may become barred under relevant statutes of limitation or may be or become subject to defences
of set off, counterclaim, estoppel and similar defences. |
| 4.2 | To maintain the Company in good standing with the Registrar of Corporate Affairs under the laws of the
British Virgin Islands, annual filing fees must be paid and returns made to the Registrar of Corporate Affairs within the time frame prescribed
by law. |
| 4.3 | We express no opinion as to the meaning, validity or effect of any references to foreign (i.e. non British
Virgin Islands) statutes, rules, regulations, codes, judicial authority or any other promulgations and any references to them in the Prospectus. |
| 4.4 | The obligations of the Company may be subject to restrictions pursuant to United Nations and United Kingdom
sanctions extended to the British Virgin Islands by Orders of Her Majesty in Council and/or sanctions imposed by governmental or regulatory
authorities or agencies in the British Virgin Islands under British Virgin Islands legislation. |
| 4.5 | Under British Virgin Islands law, the register of members 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 British Virgin Islands court for a determination on whether the register of members reflects the correct legal position.
Further, the British Virgin 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. For the purposes of the opinion given in
paragraphs 3.2 and 3.3, 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 Ordinary Shares or the Warrant Shares, then the validity of such shares may be subject to re-examination by
a British Virgin Islands court. |
| 4.6 | Except as specifically stated herein, we make no comment with respect to any representations and warranties
which may be made by or with respect to the Company in any of the documents or instruments cited in this opinion or otherwise with respect
to the commercial terms of the transactions the subject of this opinion. |
| 4.7 | In this opinion letter, the phrase “non-assessable” means, with respect to the issuance of shares,
that a shareholder shall not, in respect of the relevant shares and in the absence of a contractual arrangement, or an obligation pursuant
to the memorandum and articles of association, to the contrary, have any obligation to make further contributions to the Company’s assets
(except in exceptional circumstances, such as involving fraud, the establishment of an agency relationship or an illegal or improper purpose
or other circumstances in which a court may be prepared to pierce or lift the corporate veil). |
The opinions in this opinion letter are strictly
limited to the matters contained in the opinions section above and do not extend to any other matters.
We hereby consent to the filing of this opinion
as an exhibit to the Prospectus and to the reference to our firm under the heading “Legal Matters” in the prospectus included
in the Prospectus. In providing our consent, we do not thereby admit that we are in the category of persons whose consent is required
under Section 7 of the SEC Act or the rules and regulations of the Commission thereunder.
This opinion is addressed to
you and may be relied upon by you, your counsel and purchasers of Ordinary Shares and Warrant Shares pursuant to the Prospectus. This
opinion is limited to the matters detailed herein and is not to be read as an opinion with respect to any other matter.
Yours faithfully |
|
|
|
/s/ Maples and Calder |
|
Maples and Calder |
|
6
Exhibit
10.1
RD
SECURITIES PURCHASE AGREEMENT
This RD Securities Purchase
Agreement (this “Agreement”) is dated as of September 11, 2023, between EZGO Technologies Ltd., a British Virgin Islands
business company (the “Company”), and each purchaser identified on the signature pages hereto (including their respective
successors and assigns, each 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 of 1933, as amended (the “Securities Act”), 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, for all purposes of this Agreement, 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 4.5.
“Action”
shall have the meaning ascribed to such term in Section 3.1(j).
“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.
“Agreement”
shall have the meaning ascribed to such term in the preamble.
“BHCA”
shall have the meaning ascribed to such term in Section 3.1(pp).
“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.
“Buy-In
Price” shall have the meaning ascribed to such term in Section 4.1(d).
“BVI
Counsel” means Maples and Calder.
“Closing”
means the closing of the purchase and sale of the Securities pursuant to Section 2.1.
“Closing
Date” means the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable parties
thereto, and all conditions precedent to (i) the Purchasers’ obligations to pay the Subscription Amount and (ii) the Company’s
obligations to deliver the Securities, in each case, have been satisfied or waived, but in no event later than the first (1st) Trading
Day following the date hereof.
“Code”
means the Internal Revenue Code of 1986, as amended.
“Commission”
means the United States Securities and Exchange Commission.
“Ordinary
Shares” means the ordinary shares of the Company, $0.001 par value 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 stock, 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.
“Common
Warrants” means the warrants to purchase Ordinary shares delivered to the Purchasers at the Closing in accordance with Section
2.2(a) hereof, which Common Warrants shall be in the form of Exhibit A attached thereto.
“Company”
shall have the meaning ascribed to such term in the preamble.
“Company
Counsel” means with respect to U.S. federal securities law and New York law, Ellenoff Grossman & Schole LLP, 1345 Avenue
of the Americas, New York, NY 10105.
“Disclosure
Schedules” means the Disclosure Schedules of the Company delivered concurrently herewith.
“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.
“DVP”
shall have the meaning ascribed to such term in Section 2.1.
“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.
“Exchange
Warrants” means the warrants to purchase Ordinary shares delivered to the Purchasers at the Closing in accordance with Section
2.2(a) hereof, which Exchange Warrants shall be in the form of Exhibit B attached thereto.
“Exempt
Issuance” means (i) any conventional bank loans that are not convertible into Ordinary Shares or Ordinary Share Equivalents
and do not involve any issuance of any Ordinary Shares or Ordinary Share Equivalents or other security of the Company in connection therewith;
(ii) Ordinary Shares or options issued to employees, officers or directors of the Company pursuant to (i) the Company’s equity
incentive plans or (ii) compensation agreements previously authorized by the Board of Directors; (iii) securities issued 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 stock splits or combinations) or to extend the term of such securities; and (iv)
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 period of one hundred and twenty (120)
days following the Closing Date 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.
“FDA”
shall have the meaning ascribed to such term in Section 3.1(uu).
“FDCA”
shall have the meaning ascribed to such term in Section 3.1(uu).
“Federal
Reserve” shall have the meaning ascribed to such term in Section 3.1(pp).
“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(p).
“Issuer
Covered Person” shall have the meaning ascribed to such term in Section 3.1(rr).
“IT
Systems and Data” shall have the meaning ascribed to such term in Section 3.1(vv).
“Liens”
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, executive
officers, employees and shareholders holding at least ten percent (10%) of the outstanding Ordinary Shares on a fully converted basis,
in the form of Exhibit B 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(n).
“Money
Laundering Laws” shall have the meaning ascribed to such term in Section 3.1(qq).
“OFAC”
shall have the meaning ascribed to such term in Section 3.1(nn).
“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.
“Per
Unit Purchase Price” equals $1.13, 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.
“PFIC”
shall have the meaning ascribed to such term in Section 4.18.
“Placement
Agent” means Aegis Capital Corp.
“Placement
Agent Agreement” means the engagement agreement, dated August 17, 2023, between the Company and the Placement Agent.
“PRC
Counsel” means DeHeng Law Offices.
“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.
“Public
Information Failure” shall have the meaning ascribed to such term in Section 4.2(b).
“Purchaser”
shall have the meaning ascribed to such term in the preamble.
“Purchaser
Party” shall have the meaning ascribed to such term in Section 4.8.
“Registration
Statement” means the effective registration statement on Form F-3 with Commission (File No. 333-263315), including all information,
documents and exhibits filed with or incorporated by reference into such registration statement, which registers the sale of the Securities
to the Purchasers.
“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 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.
“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 Shares, the Warrants and the Warrant Shares.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Shares”
means the Ordinary Shares issued or issuable to each Purchaser pursuant to this Agreement, but excluding the Warrant Shares.
“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 Shares and Warrants purchased hereunder 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.
“Subsidiary”
means any subsidiary of the Company as set forth in the SEC Reports 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 principal Trading Market is open for trading.
“Trading
Market” means any of the following markets or exchanges on which the Ordinary Shares is 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 OTCQB, OTCQX, Pink Open Market (or any successors to any of the foregoing).
“Transaction
Documents” means this Agreement, the Securities, the Placement Agent Agreement, the Lock-Up Agreement and all exhibits and
schedules thereto and hereto and any other documents or agreements executed in connection with the transactions contemplated hereunder.
“Transfer
Agent” means VStock Transfer, LLC, the current transfer agent of the Company, with a mailing address of 18 Lafayette Place,
Woodmere, NY 11598 and an email address of young@vstocktransfer.com, and any successor transfer agent of the Company.
“Warrants”
collectively means the Common Warrants and Exchange Warrants.
“Warrant
Shares” means the Ordinary Shares issuable upon exercise of the Warrants.
ARTICLE
II.
PURCHASE AND SALE
2.1 Closing.
On the Closing Date, upon the terms and subject to the conditions set forth herein, the Company agrees to sell, and the Purchasers, severally
and not jointly, agree to purchase, up to an aggregate of approximately $9.6 million of Shares and Warrants Each Purchaser’s Subscription
Amount as set forth on the signature page hereto executed by such Purchaser shall be made available for “Delivery Versus Payment”
settlement with the Company or its designee. The Company shall deliver to each Purchaser its respective Shares and Warrants, as determined
pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at
the Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Closing shall occur at the offices
of counsel to the Placement Agent or such other location (or remotely by electronic means) as the parties shall mutually agree. Unless
otherwise directed by the Placement Agent, settlement of the Shares shall occur via “Delivery Versus Payment” (“DVP”)
(i.e., on the Closing Date, the Company shall issue the Shares registered in the Purchasers’ names and addresses and released by
the Transfer Agent directly to the account(s) at the Placement Agent identified by each Purchaser; upon receipt of such Shares, the Placement
Agent shall promptly electronically deliver such Shares to the applicable Purchaser, and payment therefor shall be made by the Placement
Agent (or its clearing firm) by wire transfer to the Company). Notwithstanding anything herein to the contrary, if at any time on or
after the time of execution of this Agreement by the Company and an applicable Purchaser, through, and including the time immediately
prior to the Closing (the “Pre-Settlement Period”), such Purchaser sells to any Person all, or any portion, of the
Shares to be issued hereunder to such Purchaser at the Closing (collectively, the “Pre-Settlement Shares”), such Purchaser
shall, automatically hereunder (without any additional required actions by such Purchaser or the Company), be deemed to be unconditionally
bound to purchase, such Pre-Settlement Shares at the Closing; provided, that the Company shall not be required to deliver any Pre-Settlement
Shares to such Purchaser prior to the Company’s receipt of the purchase price of such Pre-Settlement Shares hereunder; and provided
further that the Company hereby acknowledges and agrees that the forgoing shall not constitute a representation or covenant by such Purchaser
as to whether or not during the Pre-Settlement Period such Purchaser shall sell any shares of Common Stock to any Person and that any
such decision to sell any shares of Common Stock by such Purchaser shall solely be made at the time such Purchaser elects to effect any
such sale, if any. Notwithstanding anything to the contrary herein and a Purchaser’s Subscription Amount set forth on the signature
pages attached hereto, the number of Shares purchased by a Purchaser (and its Affiliates) hereunder shall not, when aggregated with all
other shares of Common Stock owned by such Purchaser (and its Affiliates) at such time, result in such Purchaser beneficially owning
(as determined in accordance with Section 13(d) of the Exchange Act) in excess of 9.9% (or, at the election of the Purchaser at Closing,
4.99%) of the then issued and outstanding Common Stock outstanding at the Closing (the “Beneficial Ownership Maximum”), and
such Purchaser’s Subscription Amount, to the extent it would otherwise exceed the Beneficial Ownership Maximum immediately prior
to the Closing, shall be conditioned upon the issuance of Shares at the Closing to the other Purchasers signatory hereto. To the extent
that a Purchaser’s beneficial ownership of the Shares would otherwise be deemed to exceed the Beneficial Ownership Maximum, such
Purchaser’s Subscription Amount shall automatically be reduced as necessary in order to comply with this paragraph.
2.2 Deliveries.
(a) On
or prior to the Closing Date, the Company shall deliver or cause to be delivered to each Purchaser the following:
(i) on
the date hereof, (a) this Agreement duly executed by the Company and (b) cold comfort letters from the Company’s auditors, addressed
to the Placement Agent in form and substance reasonably satisfactory in all material respects to the Placement Agent and its counsel;
(ii) legal
opinions of Company Counsel and BVI Counsel, directed to the Placement Agent and the Purchasers, in form and substance reasonably acceptable
to the Placement Agent and Purchasers;
(iii)
legal opinion of PRC Counsel a copy of which shall be made available to the Placement Agent
and the Purchasers, in form and substance reasonably acceptable to the Placement Agent and Purchasers;
(iv) a
Common Warrant registered in the name of such Purchaser to purchase up to a number of Ordinary Shares equal to the number stated on such
Purchaser’s signature page hereto, each with an exercise price equal to $1.13, subject to adjustment as provided therein;
(v) an
Exchange Warrant registered in the name of such Purchaser to purchase up to a number of Ordinary Shares stated on such Purchaser’s
signature page hereto, each with an exercise price equal to $1.13, subject to adjustment as provided therein;
(vi) subject
to the last sentence of Section 2.1, the Company shall have provided each Purchaser with the Company’s wire instructions, on Company
letterhead and executed by the Chief Executive Officer or Chief Financial Officer;
(vii) on
the date hereof, the Lock-Up Agreements;
(viii) subject
to the last sentence of Section 2.1, a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to deliver
on an expedited basis via “Delivery Versus Payment” Ordinary Shares equal to the portion of such Purchaser’s Subscription
Amount applicable to Shares, divided by the Per Unit Purchase Price, registered in the name of such Purchaser;
(ix) a
duly executed and delivered Officers’ Certificate, in customary form reasonably satisfactory to the Placement Agent and its counsel;
(x) bring
down letters from the Company’s auditors, addressed to the Placement Agent in form and substance reasonably satisfactory in all
material respects; and
(xi) the
Prospectus and Prospectus Supplement (which may be delivered in accordance with Rule 172 under the Securities Act).
(b) On
or prior to the 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) such
Purchaser’s Subscription Amount, which shall be made available for “Delivery Versus Payment” settlement with the Company
or its designee.
2.3 Closing
Conditions.
(a) The
obligations of the Company hereunder in connection with the Closing are subject to 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 of the representations and warranties of the Purchasers contained herein (unless as
of a specific date therein in which case they shall be accurate as of such date);
(ii) all
obligations, covenants and agreements of each Purchaser required to be performed at or prior to the Closing Date shall have been performed;
and
(iii) the
delivery by each Purchaser of the items set forth in Section 2.2(b) of this Agreement.
(b) The
respective obligations of the Purchasers hereunder in connection with the Closing are subject to 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 of the representations and warranties of the Company contained herein (unless as of
a specific date therein in which case they shall be accurate as of such date);
(ii) all
obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed;
(iii) the
delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) there
shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
(v) from
the date hereof to the Closing Date, trading in the Ordinary shares shall not have been suspended by the Commission or the Company’s
principal Trading Market, and, at any time prior to the 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 the 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 to the extent of the disclosure contained in the corresponding section
of the Disclosure Schedules, as applicable, 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). Except as set forth in Schedule 3.1(a),
the Company owns, directly or indirectly, all of the shares or other equity interests of each Subsidiary free and clear of any Liens,
and all of the issued and outstanding shares 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, memorandum and articles
of association, 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”; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition
or change, directly or indirectly, arising out of or attributable to: (i) any changes in financial or securities markets in general,
(ii) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof, (iii) any pandemic,
epidemics or human health crises (including COVID-19), (iv) the announcement, pendency or completion of the transactions contemplated
by the Transaction Documents, or (v) any action required or permitted by the Transaction Documents or any action taken (or omitted to
be taken) with the written consent of or at the written request of the applicable Purchasers) 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 legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except
(i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited
by applicable law.
(d) No
Conflicts. The execution, delivery and performance by the Company of this Agreement 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, memorandum and articles of association, 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 4.4 of this Agreement, (ii) the filings 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 Shares and Warrant
Shares for trading thereon in the time and manner required thereby and such other filings as are required to be made under applicable
state securities laws (the “Required Approvals”).
(f) Issuance
of the Securities; Registration. The Securities are duly authorized and, when issued and paid for in accordance with the applicable
Transaction Documents, will be duly and validly issued, fully paid and nonassessable (which means that no further sums are required to
be paid by the holders thereof in connection with the issue thereof), free and clear of all Liens imposed by the Company other than restrictions
on transfer under applicable law. The Warrant Shares, when issued in accordance with the terms of the Transaction Documents, will be
validly issued, fully paid and nonassessable (which means that no further sums are required to be paid by the holders thereof in connection
with the issue thereof), free and clear of all Liens imposed by the Company other than restrictions on transfer under applicable law.
The Company has sufficient authorized but unissued Ordinary Shares in order to issue shares the maximum number of Ordinary Shares issuable
pursuant to this Agreement and the Warrants. The Company has prepared and filed the Registration Statement in conformity with the requirements
of the Securities Act, which became effective on November 30, 2022, 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
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. The Company, if required by the rules and regulations of the Commission, shall file the Prospectus Supplement with
the Commission pursuant to Rule 424(b). At the time the Registration Statement and any amendments thereto became effective, at the date
of this Agreement and at the Closing Date, the 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 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 requirements set forth in
General Instruction I.B.5 of Form F-3.
(g) Capitalization.
The capitalization of the Company as of the date hereof is as set forth on Schedule 3.1(g)(1), which Schedule 3.1(g)(1) shall also include
the number of Ordinary Shares owned beneficially, and of record, by Affiliates of the Company as of the date hereof. Other than as stated
in Schedule 3.1(g)(1), the Company has not issued any shares since its most recently filed periodic report under the Exchange Act, other
than pursuant to the exercise of employee stock options under the Company’s stock option plans, the issuance of Ordinary Shares
to employees pursuant to the Company’s employee stock purchase plans. 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
set forth in Schedule 3.1(g), there are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any character
whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for, or giving any Person
any right to subscribe for or acquire, any Ordinary Shares or the shares 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 shares of any Subsidiary. 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). Except as set forth in Schedule 3.1(g)(2), 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. Except as set forth in Schedule
3.1(g)(2), there are no outstanding securities or instruments of the Company or any Subsidiary that contain any redemption or similar
provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may
become bound to redeem a security of the Company or such Subsidiary. The Company does not have any stock appreciation rights or “phantom
stock” plans or agreements or any similar plan or agreement. All of the issued shares of shares 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 shares
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
years 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 is not currently an issuer subject to Rule 144(i) under the Securities Act. The Company has
filed Form 10 information at least one year prior to the date hereof. 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 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 and (v) the Company has not issued any equity securities to any officer, director or Affiliate, except pursuant to existing Company
stock 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, 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 in 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 (ii) would, if there were an unfavorable decision, have
or reasonably be expected to result in a Material Adverse Effect. Neither the Company nor any Subsidiary, nor any director or officer
thereof, is or has been the subject of any Action involving a claim of violation of or liability under federal or state securities laws
or a claim of breach of fiduciary duty. 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 except in the ordinary
course of business that would not have a Material Adverse Effect. 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, or have valid and marketable rights
to lease or otherwise use, all real property and all personal property 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 that 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 in accordance with GAAP, and the payment of which is
neither delinquent nor subject to penalties. Neither the Company nor any of its Subsidiaries has received any written notice of any claim
of any sort that has been asserted by anyone adverse to the rights of the Company or its Subsidiaries under any of the leases or subleases
or licenses or with respect to the properties mentioned above, or affecting or questioning the rights of the Company or any Subsidiary
to the continued possession or use of the leased or subleased or licensed premises or the properties mentioned above, other than such
claims which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(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 written notice 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) Insurance.
The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged, including, but not
limited to, directors and officers insurance coverage in amount deemed prudent by the Company. Neither the Company nor any Subsidiary
has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its business without a significant increase in cost.
(r) Transactions
with Affiliates and Employees. Except as set forth on Schedule 3.1(r), during the past three fiscal years and the subsequent interim
period through the date of this Agreement, none of the officers or directors of the Company or any Subsidiary and, to the knowledge of
the Company, none of the employees of the Company or any Subsidiary is presently a party to any transaction with the Company or any Subsidiary
(other than for services as employees, officers and directors), including any contract, agreement or other arrangement providing for
the furnishing of services to or by, providing for rental of real or personal property to or from, providing for the borrowing of money
from or lending of money to or otherwise requiring payments to or from any officer, director or such employee or, to the knowledge of
the Company, any entity in which any officer, director, or any such employee has a substantial interest or is an officer, director, trustee,
shareholder, member or partner, in each case in excess of $120,000 other than for (i) payment of salary or consulting fees for services
rendered, (ii) reimbursement for expenses incurred on behalf of the Company and (iii) other employee benefits, including stock option
agreements under any stock option plan of the Company.
(s) Sarbanes-Oxley;
Internal Accounting Controls. The Company and the Subsidiaries are in material compliance with any and all applicable requirements
of the Sarbanes-Oxley Act of 2002 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 the Closing Date. Except as set forth on Schedule 3.1(s),
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 the fees and expenses of 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) Reserved.
(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 disclosed 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. The Company has not, in the 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. 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, 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 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 the 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 the Closing Date. 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 $50,000 (other than trade accounts payable incurred in the ordinary course of business), (y) all guaranties, endorsements and other
contingent obligations in respect of indebtedness of others, whether or not the same are or should be reflected in the Company’s
consolidated balance sheet (or the notes thereto), except guaranties by endorsement of negotiable instruments for deposit or collection
or similar transactions in the ordinary course of business; and (z) the present value of any lease payments in excess of $50,000 due
under leases required to be capitalized in accordance with GAAP. Neither the Company nor any Subsidiary is in default with respect to
any Indebtedness.
(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, or as disclosed in Schedule 3.1(cc), the Company and its Subsidiaries each (i) has made or filed all material 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 material 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) Reserved.
(ee) Foreign
Corrupt Practices Act. 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 firms are Marcum Asia CPAs LLP, Briggs & Veselka Co., LLP and Wei, Wei & Co., LLP for each of
the periods ended September 30, 2020, 2021 and 2022, respectively. 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 now current fiscal year.
(gg) 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.
(hh) 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.
(ii) Acknowledgment
Regarding Purchaser’s Trading Activity. Anything in this Agreement or elsewhere herein to the contrary notwithstanding (except
for Sections 3.2(g) and 4.15 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 Warrant 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.
(jj) 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 Company’s placement agent in connection with the placement
of the Securities.
(kk) Officers’
Certificate. Any certificate signed by any duly authorized officer of the Company and delivered to the Purchasers shall be deemed
a representation and warranty by the Company to the Purchasers as to the matters covered thereby.
(ll) D&O
Questionnaires. To the Company’s knowledge, all information contained in the questionnaires most recently completed by each
of the Company’s directors and officers and beneficial owner of 5% or more of the Ordinary Shares or Ordinary Shares Equivalents
is true and correct in all respects and the Company has not become aware of any information which would cause the information disclosed
in such questionnaires become inaccurate and incorrect.
(mm) Stock
Option Plans. Each stock option granted by the Company under the Company’s stock option plan, if any, was granted (i) in accordance
with the terms of the Company’s stock option plan and (ii) with an exercise price at least equal to the fair market value of the
Ordinary Shares on the date such stock option would be considered granted under GAAP and applicable law. No stock option granted under
the Company’s stock 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, stock options prior to, or otherwise knowingly coordinate the grant of stock options with, the
release or other public announcement of material information regarding the Company or its Subsidiaries or their financial results or
prospects.
(nn) 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”).
(oo) 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.
(pp) 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.
(qq) 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.
(rr)
Reserved.
(ss) Reserved.
(tt) Reserved.
(uu) Reserved.
(vv) 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, in the case of clauses (i) and (ii) herein, 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.
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 the 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 law 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 legal, valid and 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) Own
Account. Such Purchaser is acquiring the Securities as principal for its own account and has no present intention of
distributing any of such Securities (this representation and warranty shall not limit such Purchaser’s right to sell the
Securities pursuant to a 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 any Warrants, 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)(1) under the Securities Act. Such Purchaser hereby represents that neither such Purchaser nor any of its Rule 506(d)
Related Parties (as defined below) is a “bad actor” within the meaning of Rule 506(d) promulgated under the Securities Act.
For purposes of this Agreement, “Rule 506(d) Related Party” shall mean a person or entity covered by the “Bad Actor
disqualification” provision of Rule 506(d) of 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) Reserved.
(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 and has not been provided to it (other than with respect to the transactions
contemplated by the Transaction Documents). 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 Warrant
Shares. If all or any portion of a Warrant is exercised at a time when there is an effective registration statement to cover the
issuance or resale of the Warrant Shares or if the Warrant is exercised via cashless exercise, the Warrant Shares issued pursuant to
any such 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 Warrant Shares) is not effective or is not otherwise available for the sale
or resale of the Warrant Shares, the Company shall immediately notify the holders of the 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 Warrant 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 Warrant 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 Warrant Shares effective during the term of the Warrants.
4.2 Furnishing
of Information. Until the earliest of the time that (i) no Purchaser owns any Securities or (ii) the Warrants have terminated, the
Company covenants to 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.
4.3 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.
4.4 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, within the time required by the Exchange Act, a Current Report on Form 8-K, including
the Transaction Documents as exhibits thereto, with the Commission. 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 (including,
without limitation, the Placement Agent), employees or Affiliates on the one hand, and any of the Purchasers or any of their Affiliates
on the other hand, shall terminate and be of no further force or effect. The Company understands and confirms that each Purchaser shall
be relying on the foregoing covenant in effecting transactions in securities of the Company. 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) to the
extent required by federal securities law in connection with 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 such cases the Company shall (x) obtain prior advice
of competent counsel that such disclosure is required, (y) provide the Purchasers with prior notice of such disclosure permitted under
this Section 4.4 and (z) reasonably cooperate with such Purchasers regarding such disclosure.
4.5 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.
4.6 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 4.4, 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 in writing to the receipt of such
information and agreed in writing 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, directors, 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 with the delivery of such notice file such notice
with the Commission pursuant to a Current Report on Form 8-K. The Company understands and confirms that each Purchaser shall be relying
on the foregoing covenant in effecting transactions in securities of the Company.
4.7 Use
of Proceeds. The Company shall use the net proceeds from the sale of the Securities hereunder for general corporate purposes (which
for the avoidance of doubt may include acquisitions, in the Company’s discretion), including working capital. The Company 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 Shares
Equivalents, (c) for the settlement of any outstanding litigation or (d) in violation of FCPA or OFAC regulations.
4.8 Indemnification
of Purchasers. Subject to the provisions of this Section 4.8, 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, (b) any action instituted against the Purchaser Parties in any capacity (including a Purchaser
Party’s status as an investor), or any of them or their respective Affiliates, by the Company or any shareholder of the Company
who is not an Affiliate of such Purchaser Party, arising out of or relating to any of the transactions contemplated by the Transaction
Documents. For the avoidance of doubt, the indemnification provided herein is intended to, and shall also cover, direct claims brought
by the Company against the Purchaser Parties; provided, however, that such indemnification shall not cover any loss, claim, damage or
liability to the extent that it is finally judicially determined to be attributable to any Purchaser Party’s breach of any of the
representations, warranties, covenants made by such Purchaser Party in any Transaction Document or any conduct by a 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, except with respect to direct claims brought by the Company, 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 to the applicable Purchaser Party (which may be internal 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 for any settlement by a Purchaser Party effected without the Company’s prior
written consent, which shall not be unreasonably withheld or delayed. In addition, if any Purchaser Party takes actions to collect amounts
due under any Transaction Document or to enforce the provisions of any Transaction Documents, then the Company shall pay the costs incurred
by such Purchase Party for such collection, enforcement or action, including, but limited to, attorneys’ fees and disbursements.
The indemnification and other payment obligations required by this Section 4.8 shall be made by periodic payments of the amount thereof
during the course of the investigation, defense, collection, enforcement or action, as and when bills are received or are incurred; provided,
that if any Purchaser Party is finally judicially determined not to be entitled to indemnification or payment under this Section 4.8,
such Purchaser Party shall promptly reimburse the Company for any payments that are advanced under this sentence. 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.
4.9 Listing
of Ordinary Shares. The Company hereby agrees to use its best efforts to maintain the listing or quotation of the Ordinary Shares
on the Trading Market on which it is currently listed, and concurrently with the Closing, the Company shall apply to list or quote all
of the Shares and Warrant Shares on such Trading Market and promptly secure the listing of all of the Shares and Warrant Shares on such
Trading Market. The Company further agrees, if the Company applies to have the Ordinary Shares traded on any other Trading Market, it
will then include in such application all of the Shares and Warrant Shares, and will take such other action as is necessary to cause
all of the Shares and Warrant Shares to be listed or quoted on such other Trading Market as promptly as possible. The Company will then
take all action reasonably necessary to continue the listing and trading of its Ordinary Shares on a Trading Market and will comply in
all respects with the Company’s reporting, filing and other obligations under the bylaws or rules of the Trading Market. The Company
agrees to maintain the eligibility of the Ordinary Shares for electronic transfer through the Depository Trust Company or another established
clearing corporation, including, without limitation, by timely payment of fees to the Depository Trust Company or such other established
clearing corporation in connection with such electronic transfer.
4.10 Subsequent
Equity Sales. From the date hereof until ninety (90) days after the Closing Date, neither the Company nor any Subsidiary shall
(i) issue, enter into any agreement to issue or announce the issuance or proposed issuance of any Ordinary Shares or Ordinary Share
Equivalents or (ii) file any registration statement or any amendment or supplement thereto, in each case other than solely with
respect to securities issued pursuant to any share or option plan duly adopted for such purpose by the Board of Directors or a
committee of non-employee directors established for such purpose for services rendered to the Company, on Form S-8.
4.11 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 the Transaction Documents. 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.
4.12 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 4.4. 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 4.4,
such Purchaser will maintain the confidentiality of the existence and terms of this transaction. 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
4.4, (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 4.4 and (iii) no Purchaser shall have any duty of confidentiality or duty
not to trade in the securities of the Company to the Company, any of its Subsidiaries, or any of their respective officers, directors,
employees, agents or Affiliates after the issuance of the initial press release as described in Section 4.4. 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.
4.13 Reserved.
4.14 Capital
Changes. Until the date that is one hundred and eighty (180) days after the Closing Date, the Company shall not undertake a reverse
or forward share split or reclassification of the Ordinary shares without the prior written consent of the Purchasers holding a majority
in interest of the Shares, based on the initial Subscription Amounts hereunder.
4.15 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 Shares and Warrant 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 shareholders of the Company.
4.16 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.
4.17 Reserved.
4.18 QEF
Election. If a Purchaser so requests in writing for any taxable year of the Company, the Company, after consulting with its outside
accounting firm, shall within 15 Business Days notify such Purchaser in writing that either (A) neither the Company nor any of its Subsidiaries
was a “passive foreign investment company” as defined in Section 1297 of the Code (“PFIC”) for such year, or
(B) the Company and/or one or more of its Subsidiaries was a PFIC for such year, in which event the Company shall provide to such Purchaser,
upon the reasonable written request of such Purchaser, the information reasonably necessary to allow such Purchaser to elect to treat
each of the Company and any applicable Subsidiaries (if any), respectively, as a “qualified electing fund” (within the meaning
of Section 1295 of the Code for such year, including a “PFIC Annual Information Statement” as described in Treasury Regulation
Section 1.1295-1(g)(1) (or any successor Treasury Regulation).
4.19 Reservation
of Ordinary Shares. As of the date hereof, the Company shall keep available at all times, free of preemptive rights, a sufficient
number of Ordinary Shares to enabling the Company to issue two hundred percent (200%) of the number of Shares that the Company may issue
pursuant to this Agreement and Warrant Shares pursuant to any exercise of the Warrants.
4.20 Exercise
Procedures. The form of Notice of Exercise included in the Warrants set forth the totality of the procedures required of the Purchasers
in order to exercise the Warrants. No additional legal opinion, other information or instructions shall be required of the Purchasers
to exercise their Warrants. Without limiting the preceding sentences, 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 form be required in order to exercise
the Warrants. The Company shall honor exercises of the Warrants and shall deliver Warrant Shares in accordance with the terms, conditions
and time periods set forth in the Transaction Documents.
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 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 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
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 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. To the extent that any notice provided pursuant to any Transaction
Document 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.
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 Purchasers which purchased at least 50.1% in interest of the Shares based on the initial
Subscription Amounts hereunder (or, prior to Closing, the Company and each Purchaser) 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, modification or waiver disproportionately and
adversely impacts a Purchaser (or group of 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 and warranties of the
Company in Section 3.1 and the representations and warranties of the Purchasers in Section 3.2. 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 4.8 and this Section 5.8.
5.9 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 law of the State of New York. 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 and County of New York 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 4.8, 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.
5.10 Survival.
The representations and warranties contained herein shall survive the Closing and the delivery of the Securities.
5.11 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.
5.12 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.
5.13 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 an exercise of a Warrant, the applicable Purchaser shall be required to return any Ordinary Shares subject to any such rescinded 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).
5.14 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.
5.15 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.
5.16 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.
5.17 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
the legal counsel to the Placement Agent. The legal counsel of the Placement Agent 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.
5.18 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.
5.19 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.
5.20 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, bonus share issuances, share combinations and other similar transactions of Ordinary Shares that occur after the date of this
Agreement.
5.21 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.
[EZGO
RD Securities Purchase Agreement Signature Pages Follow]
[EZGO
RD Securities Purchase Agreement – Company Signature Page]
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.
EZGO TECHNOLOGIES LTD. |
|
Address for Notice: |
|
|
|
|
By: |
|
|
Email: yejianhui@ez-go.com.cn |
Name: |
Jianhui Ye |
|
|
Title: |
Chief Executive Officer |
|
|
|
|
|
|
|
|
|
[EZGO
RD Securities Purchase Agreement – Investor Signature Page]
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: |
|
|
|
|
|
Address for Notice to Purchaser: |
|
|
|
|
|
Address for Delivery of Securities to Purchaser (if
not same as address for notice): |
|
[●] |
|
|
|
Subscription Amount |
|
[●] |
|
|
|
Shares: |
|
[●] |
|
|
|
Beneficial Ownership Blocker: |
|
[●] |
|
|
|
Common
Warrants: |
|
[●] |
|
|
|
Exchange
Warrants: |
|
[●] |
|
|
|
Beneficial
Ownership Blocker: |
|
[●] |
|
|
|
Employer Identification Number: |
|
[●] |
34
Exhibit 99.1
33/F, Anlian Plaza, Jintian Rd., Futian, Shenzhen
518026 China
Tel:+86-755-88286488
Fax:+86-755-88286499
Website: www.dehenglaw.com
September 12, 2023
To: EZGO Technologies Ltd.
Building #A, Floor
2, Changzhou Institute of Dalian University of Technology,
Science and Education
Town,
Wujin District, Changzhou
City
Jiangsu, China 213164
Re: Legal
Opinion on Certain PRC Legal Matters
Dear Sir/Madam,
We are qualified lawyers of the People’s Republic
of China (the “PRC”, for the purpose of this legal opinion, excluding the Hong Kong Special Administrative Region,
the Macau Special Administrative Region and Taiwan region), and are qualified to issue opinions on the laws and regulations of the PRC
effective as of the date hereof (the “PRC Laws”).
We have acted as the PRC counsel for EZGO Technologies
Ltd. (the “Company”), a company incorporated under the laws of the British Virgin Islands, in connection with a registered
offering (the “Offering”) of 8,498,125 ordinary shares, along with associated warrants at a combined purchase price
of $1.13 per ordinary share and associated warrants, as set forth in the prospectus supplement and the accompanying prospectus (the “Registration
Statement”), filed by the Company with the Securities and Exchange Commission under the U.S. Securities Act of 1933, as amended,
in relation to the Offering.
In so acting, we have examined the originals or copies,
certified or otherwise identified to our satisfaction, of documents provided to us by the Company and such other documents, corporate
records, certificates issued by governmental authorities in the PRC and officers of the Company and other instruments as we have deemed
necessary or advisable for the purpose of rendering this Opinion, including, without limitation, originals or copies of the agreements
listed in Annex B hereof (the “VIE Agreements”) and the certificates issued by the PRC Authorities and officers
of the Company (collectively, the “Documents”).
In our examination of the Documents and for the purpose
of rendering this Opinion, we have assumed without further inquiry:
(A) |
the genuineness of all signatures, seals and chops, and the authenticity of all Documents submitted to us as originals and the conformity with originals of the Documents submitted to us as copies and the authenticity of such originals; |
(B) |
the Documents as submitted to us remain in full force and effect up to the date of this Opinion, and have not been revoked, amended, revised, modified or supplemented as of the date of this Opinion except as otherwise indicated in such Documents; |
(C) |
the truthfulness, accuracy, fairness and completeness of the Documents, as well as all factual statements contained in the Documents; |
(D) |
that all information (including factual statements) provided to us by the Company and the PRC Group Entities in response to our inquiries for the purpose of this Opinion is true, accurate, complete and not misleading and that the Company and the PRC Group Entities have not withheld anything in response to our inquiries that, if disclosed to us, would reasonably cause us to alter this Opinion in whole or in part; |
(E) |
that all parties, other than the PRC Group Entities, have the requisite power and authority to enter into, execute, deliver and perform the Documents to which they are parties; |
(F) |
that all parties, other than the PRC Group Entities, have duly executed, delivered, performed or will duly perform their obligations under the Documents to which they are parties; |
(G) |
that all Governmental Authorizations and other official statement or documentation were obtained from the competent Government Authorities by lawful means in due course; |
(H) |
that all Documents are legal, valid, binding and enforceable under all such laws as govern or relate to them other than PRC Laws. Where important facts were not independently established to us, we have relied upon certificates issued by Government Authorities and representatives of the Company with proper authority in each case; and |
(I) |
that this Opinion is limited to matters of the PRC Laws effective as the date hereof. We have not investigated, and we do not express or imply any opinion on accounting, auditing, or laws of any other jurisdiction. |
The following terms as used in this Opinion are
defined as follows:
“Government Agency” |
means any competent government authorities, agencies, courts, arbitration commissions, or regulatory bodies of the PRC or any province, autonomous region, city or other administrative division of the PRC. |
“Governmental Authorizations” |
mean any approval, consent, permit, authorization, filing, registration, exemption, waiver, endorsement, annual inspection, qualification and license required by the PRC Laws to be obtained from any Government Agency. |
“M&A Rules” |
mean the Regulations on Mergers and Acquisitions of Domestic Enterprises by Foreign Investors, which was issued by the Ministry of Commerce, the State Assets Supervision and Administration Commission, the State Administration for Taxation, the State Administration for Industry and Commerce (now integrated into the State Administration for Market Regulation), the China Securities Regulatory Commission (the “CSRC”) and the State Administration for Foreign Exchange on August 8, 2006 and as amended by the Ministry of Commerce on June 22, 2009. |
“Overseas Listing Regulations” |
mean the Trial Measures for the Administration of Overseas Issuance and Listing of Securities by Domestic Enterprises and five supporting guidelines,which was issued by the CSRC on February 17, 2023 and became effective on March 31, 2023. |
“PRC Authorities” |
mean any national, provincial or local governmental, regulatory or administrative authority, agency or commission in the PRC, or any court, tribunal or any other judicial or arbitral body in the PRC. |
“PRC Group Entities” |
mean any and all of the PRC Subsidiaries, the VIE as listed in Annex A-2 hereto and the respective subsidiaries of the VIE as listed in Annex A-3 hereto, and each a PRC Group Entity. |
“PRC Subsidiaries” |
means the subsidiaries of the Company incorporated in the PRC as listed in Annex A-1 hereto. |
“Prospectus” |
means the prospectus, including all amendments or supplements thereto, that form parts of the Registration Statement. |
“Registration Statement” |
means the registration statement in Form F-3, including all amendments or supplements thereto, under the United States Securities Act of 1933, as amended, filed with the United States Securities and Exchange Commission (the “SEC”) relating to the Offering by the Company. |
“WFOE” |
means Changzhou EZGO Enterprise Management Co., Ltd. |
“VIE” |
means Jiangsu EZGO Electronic Technologies, Co., Ltd, whose shareholding structure as listed in Annex A-2 hereto. |
Based on the foregoing examinations and assumptions
and subject to the disclosures contained in the Registration Statement and the qualifications set out below, we are of the opinion that,
as of the date hereof, so far as PRC Laws are concerned:
1. |
Based on our understanding of the current PRC Laws, (i) the ownership structures of the WFOE and the VIE, currently and immediately after this Offering, does not violate any applicable PRC laws or regulations currently in effect; and (ii) each of such VIE Agreements among the WFOE, the VIE and its shareholders governed by PRC Laws, currently and immediately after giving effect to this Offering, is valid, binding and enforceable in accordance with its terms and applicable PRC Laws and, both currently and immediately after this Offering, do not and will not violate any applicable PRC laws or regulations currently in effect. As of the date of this Opinion, none of the Company or the PRC Group Entities are covered by permissions requirements from the CSRC, CAC, or any other governmental agency that is required to approve the VIE’s operations, and therefore no such permission or approval has been denied. However, there are substantial uncertainties regarding the interpretation and application of the existing and future PRC Laws, and there can be no assurance that the PRC Authorities may in the future take a view that is not contrary to or otherwise different from our opinion stated above. |
2. |
We have advised the Company as to the content of the M&A Rules, in particular the relevant provisions thereof that purport, among other things, to require offshore special purpose vehicles, or SPVs, formed for overseas listing purposes through acquisitions of PRC domestic enterprises and controlled by PRC enterprises or individuals, to obtain the approval of the CSRC prior to publicly listing their securities on an overseas stock exchange. We are of the opinion that a prior approval from the CSRC is not required for the Offering because (i) the CSRC has not issued any definitive rule or interpretation concerning whether the Offering is subject to the M&A Rules as of the date hereof; (ii) the WFOE was incorporated as a foreign-invested enterprise by means of foreign direct investment at the time of its incorporation; (iii) the Company did not acquire any equity interests or assets of a PRC company owned by its beneficial owners who are PRC Group Entities or individuals, as such terms are defined under the M&A Rules; and (iv) there is no provision in the M&A Rules that clearly classifies the VIE Agreements and arrangement as a kind of merger and acquisition transaction falling under the M&A Rules. However, uncertainties still exist as to how the M&A Rules will be interpreted or implemented in the context of an overseas offering and our opinion stated above is subject to any new laws, rules and regulations or detailed implementations and interpretations in any form relating to the M&A Rules. |
3. |
We have advised the Company as to the content of the Overseas Listing Regulations, which are applicable to overseas securities offerings and/or listings conducted by issuers who are (i) PRC domestic companies and (ii) companies incorporated overseas with substantial operations in the PRC and stipulate that such issuer shall fulfill the filing procedures within three working days after it makes an application for initial public offering and listing in an overseas stock market. Among other things, if an overseas listed issuer intends to effect any follow-on offering in an overseas stock market, it should, through its major operating entity incorporated in the PRC, submit filing materials to the CSRC within three working days after the completion of the offering. The required filing materials shall include, but not be limited to, (1) filing report and relevant commitment letter and (2) domestic legal opinions. The Overseas Listing Regulations stipulate the legal consequences for breaches, including failure to fulfill filing obligations or engaging in fraudulent filing behavior, which may result in a fine ranging from RMB1 million to RMB10 million, and in cases of severe violations, the relevant responsible persons may also be barred from entering the securities market. |
4. |
On December 28, 2021, the Measures for Cybersecurity Review (2021 version) was promulgated and took effective on February 15, 2022, which iterates that any “online platform operators” controlling personal information of more than one million users which seeks to list on a foreign stock exchange should also be subject to cybersecurity review by the Cyberspace Administration of China (the “CAC”). The Measures for Cybersecurity Review, among others, evaluates the potential risks of critical information infrastructure, core data, important data, or a large amount of personal information being influenced, controlled or maliciously used by foreign governments after the overseas listing of an operator. The procurement of network products and services, data processing activities and overseas listing should also be subject to the cybersecurity review if the CAC concerns or they potentially pose risks to national security. We are of the view that the Company is not subject to the cybersecurity review by the CAC for the Offering, since (i) the Measures for Cybersecurity Review is not applicable to further equity or debt offerings by companies that have completed their initial public offerings in the United States; (ii) data processed in the Company’s business does not have a bearing on national security and may not be classified as core or important data by the PRC governmental authorities. However, there can be no assurance that the PRC Authorities may take a view that is not contrary to or otherwise different from our opinion stated above. |
5. |
To the best of our knowledge after due inquiry, as of the date of this Opinion, the PRC Group Entities have received from PRC authorities all requisite licenses, permissions or approvals needed to engage in the businesses currently conducted in China, and no permission or approval has been denied. Such licenses and permissions include, but not limited to, business registration, pollutant discharge permit, construction planning permit, fire protection design review of construction project, and fire protection acceptance of construction project. |
6. |
As of the date of this Opinion, the Company is currently not required to obtain approval from any of the PRC central or local government and has not received any denial for listing on the U.S exchanges or offering the securities being registered to foreign investors. |
7. |
The transfer of funds between the PRC Group Entities are subject to the Provisions of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases (the “Provisions on Private Lending Cases”), which was implemented on August 20, 2020, to regulate the financing activities between natural persons, legal persons and unincorporated organizations. The Provisions on Private Lending Cases set forth that private lending contracts will be upheld as invalid under the circumstance that (i) the lender swindles loans from financial institutions for relending; (ii) the lender relends the funds obtained by means of a loan from another profit-making legal person, raising funds from its employees, illegally taking deposits from the public; (iii) the lender who has not obtained the lending qualification according to the law lends money to any unspecified object of the society for the purpose of making profits; (iv) the lender lends funds to a borrower when the lender knows or should have known that the borrower intended to use the borrowed funds for illegal or criminal purposes; (v) the lending is in violation of public orders or good morals; or (vi) the lending is in violation of mandatory provisions of laws or administrative regulations. Due to the circumstances aforementioned do not exist in the PRC Subsidiaries’ operations, we are of the view that the Provisions on Private Lending Cases does not prohibit using cash generated from one PRC subsidiary to fund another PRC subsidiary’s operations. |
8. |
The statements set forth in the Registration Statement under the captions “Prospectus Summary” , “Risk Factors” “Legal Matters” and “Taxation” to the extent that they constitute matters of PRC Laws or summaries of legal matters under PRC Laws, fairly reflect the matters purported to be summarized therein in all material aspects; and did not omit to state any material fact necessary to make the statements, in light of the circumstances under which they were made, not misleading in any material respect. |
This Opinion is subject to the following qualifications:
This Opinion is subject to (i) applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or similar laws affecting creditors’ rights generally, and (ii) possible
judicial or administrative actions or any PRC Law affecting creditors’ rights.
This Opinion is subject to (i) certain equitable,
legal or statutory principles in affecting the enforceability of contractual rights generally under concepts of public interest, interests
of the state, national security, reasonableness, good faith and fair dealing, and applicable statutes of limitation; (ii) any circumstances
in connection with formulation, execution or implementation of any legal documents that would be deemed materially mistaken, clearly unconscionable,
fraudulent, or coercionary at the conclusions thereof; (iii) judicial discretion with respect to the availability of indemnifications,
remedies or defenses, the calculation of damages, the entitlement to attorney fees and other costs, the waiver of immunity from jurisdiction
of any court or from legal process; and (iv) the legally vested discretion of any competent PRC legislative, administrative or judicial
bodies in exercising their authority in the PRC.
This Opinion only encompasses opinions on legal aspects
and relates only to PRC Laws effective as of the date of this Opinion and we express no opinion as to any laws other than PRC Laws. There
is no guarantee that any of such PRC Laws will not be changed, amended, replaced or revoked in the immediate future or in the longer term
with or without retroactive effect.
This Opinion is given for use only by the Company
but not for the use by any other person or for any other purposes. Without our prior written consent, this Opinion (including its drafts
or supplements) shall not, in whole or in part, be copied, reproduced or disclosed to any other person in accordance with PRC Laws, except
where the disclosure of this Opinion is required to be made by applicable laws or is required in order to establish a defense to any legal
or regulatory proceedings or investigation, or is requested by any court, regulatory or governmental authority, in each case, (i) on
a non-reliance basis and (ii) with a prior written notice provided to us unless such prior written notice is not permissible under
the applicable laws or otherwise not practicable.
This Opinion is delivered solely for the purpose
of and in connection with the Registration Statement submitted to the SEC on the date of this Opinion and may not be used for any other
purpose without our prior written consent.
We hereby consent to the use of this Opinion in,
and the filing hereof as an exhibit to, the Registration Statement, and to the use of our firm’s name in the Registration Statement.
In giving such consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7
of the U.S. Securities Act of 1933, as amended, or the regulations promulgated thereunder.
|
Yours faithfully, |
|
|
|
/s/ DeHeng Law Offices (Shenzhen) |
|
DeHeng Law Offices
(Shenzhen) |
Annex A-1: List of PRC Subsidiaries
1. |
Changzhou EZGO Enterprise Management Co., Ltd. |
2. |
Changzhou Langyi Electronic Technologies Co., Ltd. |
3. |
Jiangsu Langyi Inport and Export Trading Co., Ltd. |
4. |
Jiangsu EZGO Energy Supply Chain Technologies Co., Ltd. |
5. |
Jiangsu EZGO New Energy Technologies Co., Ltd. |
6. |
Sichuan EZGO Energy Technologies Co., Ltd. |
7 |
Tianjin EZGO Electric Technologies Co., Ltd. |
8. |
Changzhou Youdi Electric Bicycle Co., Ltd. |
9. |
Changzhou Sixun Technology Co., Ltd. |
10. |
Changzhou Higgs Intelligent Technology Co., Ltd. |
Annex A-2: List of VIE
1. |
Jiangsu EZGO Electronic Technologies Co., Ltd. (formerly known as Jiangsu Baozhe Electric Technologies Co., Ltd.), whose shareholding structure is as follows: |
No. | |
Name of Shareholders | |
Percentage of
Shareholding | |
1. | |
Jianhui Ye | |
28.7158 | % |
2. | |
Henglong Chen | |
15.9071 | % |
3. | |
Xinyu Xingcaitong Growth II Investment Partner (Limited Partner) | |
9.9298 | % |
4. | |
Xinyu Xingcaitong Growth I Investment Partner (Limited Partner) | |
6.8762 | % |
5. | |
Ting Yao | |
6.7104 | % |
6. | |
Huajian Xu | |
6.0000 | % |
7. | |
Peiyao Jing | |
5.0591 | % |
8. | |
Wenbin Hu | |
4.8000 | % |
9. | |
Lina Zhong | |
4.5000 | % |
10. | |
Xiaohai Lu | |
4.1800 | % |
11. | |
Yihan Liu | |
4.0000 | % |
12. | |
Yanhong Xie | |
1.8214 | % |
13. | |
Yanwen Chen | |
1.5000 | % |
| |
Total | |
100 | % |
Annex A-3: List of the Respective Subsidiaries
of the VIE
1. |
Changzhou Hengmao Power Battery Technology Co., Ltd. |
2. |
Changzhou Yizhiying IoT Technologies Co., Ltd. |
3. |
Jiangsu Cenbird E-Motorcycle Technologies Co., Ltd. |
Annex B: VIE Agreements
(1) |
Exclusive Management Consulting and Technical Service Agreement between Jiangsu EZGO Electronic Technologies, Co., Ltd, and Changzhou EZGO Enterprise Management Co., Ltd. executed as of November 8, 2019 |
(2) |
Proxy Agreement among Changzhou EZGO Enterprise Management Co., Ltd., Jiangsu EZGO Electronic Technologies, Co., Ltd, and its shareholders executed as of November 8, 2019 |
(3) |
Exclusive Call Option Agreement among Changzhou EZGO Enterprise Management Co., Ltd., Jiangsu EZGO Electronic Technologies, Co., Ltd, and its shareholders executed as of November 8, 2019 |
(4) |
Equity Pledge Agreement among Changzhou EZGO Enterprise Management Co., Ltd., Jiangsu EZGO Electronic Technologies, Co., Ltd, and its shareholders executed as of November 8, 2019. On November 28, 2019, Changzhou EZGO Enterprise Management Co., Ltd., Jiangsu EZGO Electronic Technologies, Co., Ltd, and its shareholders have completed the registration of the equity pledge with the relevant Government Agency in accordance with the PRC Property Rights Law. |
(5) |
Loan Agreement among Changzhou EZGO Enterprise Management Co., Ltd. and Jiangsu EZGO Electronic Technologies, Co., Ltd, executed as of November 8, 2019. |
(6) |
Spousal Consent Letters executed by the spouses of individual shareholders of Jiangsu EZGO Electronic Technologies, Co., Ltd, as of November 8, 2019. |
8
Exhibit 99.2
EZGO Announces Pricing of $9.6 Million Registered Direct Offering
CHANGZHOU, China, Sept. 12, 2023 /PRNewswire/ -- EZGO Technologies
Ltd. (Nasdaq: EZGO) ("EZGO" or the "Company"), a leading short-distance transportation solutions provider in China,
today announced that it has entered into a definitive agreement with certain institutional investors for the purchase and sale of 8,498,125
ordinary shares, along with associated warrants (as further described herein) at a combined purchase price of $1.13 per ordinary share
and associated warrants. Each one ordinary share will be sold together with one common warrant exercisable for one ordinary share at an
exercise price of $1.13 per ordinary share and four exchange warrants each exercisable for one ordinary share at an exercise price of
$1.13 per ordinary share. The common warrants and exchange warrants will each have a three year term. In addition to the customary cashless
exercise rights provided in both the common warrants and the exchange warrants, the exchange warrants will also provide an alternate right
to exercise on a cashless exercise basis and receive the total number of ordinary shares which the holder would have received if exercised,
in full, for cash.
The aggregate gross proceeds to the Company are expected to be approximately
$9.6 million, in consideration for which the Company will issue a total of 8,498,125 ordinary shares, common warrants to purchase up to
8,498,125 ordinary shares and exchange warrants to purchase up to 33,992,500 ordinary shares. The transaction is expected to close on
or about September 13, 2023, subject to satisfaction of customary closing conditions.
Aegis Capital Corp. is acting as the Exclusive Placement Agent.
The registered direct offering is being made pursuant to an effective
shelf registration statement on Form F-3 (No. 333-263315) previously filed with the U.S. Securities and Exchange Commission (the "SEC")
and declared effective by the SEC on November 30, 2022. A final prospectus supplement and accompanying prospectus describing the terms
of the proposed offering will be filed with the SEC and will be available on the SEC's website located at http://www.sec.gov. Electronic
copies of the final prospectus supplement and the accompanying prospectus may be obtained, when available, by contacting Aegis Capital
Corp., Attention: Syndicate Department, 1345 Avenue of the Americas, 27th floor, New York, NY 10105, by email at syndicate@aegiscap.com,
or by telephone at (212) 813-1010.
Before investing in this offering, interested parties should read in
their entirety the prospectus supplement and the accompanying prospectus and the other documents that the Company has filed with the SEC
that are incorporated by reference in such prospectus supplement and the accompanying prospectus, which provide more information about
the Company and such offering.
This press release shall not constitute an offer to sell or the solicitation
of an offer to buy nor shall there be any sale of these securities in any state or jurisdiction in which such offer, solicitation or sale
would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction.
About EZGO Technologies Ltd.
Leveraging an Internet of Things (IoT) product and service platform
and three e-bicycle brands, "EZGO" and "Cenbird", EZGO has established a business model centered on the manufacturing
and sale of two-and three-wheeled electric vehicles, lithium batteries, complemented by the e-bicycle charging pile business. For additional
information, please visit EZGO's website at www.ezgotech.com.cn. Investors can visit the "Investor Relations" section of EZGO's
website at www.ezgotech.com.cn/Investor.
Safe Harbor Statement
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 guarantees 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; product and service demand and acceptance; changes in technology;
economic conditions; the growth of the short-distance transportation solutions market in China and the other international markets the
Company plans to serve; reputation and brand; the impact of competition and pricing; government regulations; fluctuations in general economic
and business conditions in China and the international markets the Company plans to serve and assumptions underlying or related to any
of the foregoing and other risks contained in reports filed by the Company with the SEC, including the Company's most recently filed Annual
Report on Form 20-F and its subsequent filings. 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 SEC, 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.
EZGO Technologies (NASDAQ:EZGO)
Graphique Historique de l'Action
De Juin 2024 à Juil 2024
EZGO Technologies (NASDAQ:EZGO)
Graphique Historique de l'Action
De Juil 2023 à Juil 2024