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 6, 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 8,849,558 ordinary shares (“Ordinary Shares”) and accompanying warrants (the “Warrants”), with
each of the Warrants accompanying one Ordinary Share, to purchase up to 8,849,558 Ordinary Shares, in a registered direct offering to
certain institutional investors, pursuant to the Securities Purchase Agreement. The Securities Purchase Agreement was terminated by the
Company and the Investors on September 11, 2023, pursuant to Termination Agreements between the Company and each of the Investors (the
“Termination Agreements”), except for the sale of 351,433 pre-settlement Ordinary Shares sold to one of the Investors
at a price of $1.13 per share, for a total purchase price of $397,119 (the “Pre-Settlement Shares”). The Company did
not pay any expenses, in connection with the sale of the Pre-Settlement Shares and received proceeds of $397,119 in consideration for
the sale of the Pre-Settlement Shares. Copies of the Termination Agreements are attached as Exhibit 10.2, Exhibit 10.3, and Exhibit 10.4
hereto, respectively. The sale of the Pre-Settlement Ordinary Shares was made pursuant to a “shelf” registration statement
on Form F-3 (File No. 333-263315) initially filed with the Securities and Exchange Commission (the “SEC”) on March
4, 2022 and declared effective on November 30, 2022, and the prospectus contained therein, as supplemented by the prospectus supplement
dated September 11, 2023 and filed with the SEC on September 11, 2023.
The
Company intends to use the net proceeds from the Offering for working capital and general business purposes.
The Securities Purchase Agreement
contains customary representations, warranties and agreements by the Company and the Investors, and indemnification obligations of the
Company against certain liabilities, including for liabilities under the Securities Act of 1933, as amended. The provisions of the Securities
Purchase Agreement, including the representations and warranties contained therein, are not for the benefit of any party other than the
parties to such agreement and are not intended as a document for investors and the public to obtain factual information about the current
state of affairs of the Company. Rather, investors and the public should look to other disclosures contained in the Company’s filings
with the SEC.
The foregoing description of the
Securities Purchase Agreement and the Termination Agreements do not purport to be complete and each is qualified in its entirety by the
full text of that agreement, the form of which is attached hereto as Exhibits 10.1, 10.2, 10.3, and 10.4.
The legal opinion of Maples and
Calder relating to the legality of the issuance and sale of the Ordinary Shares 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 11, 2023, the Company
issued a press release announcing the transaction described herein. 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 11, 2023 |
By: |
/s/
Jianhui Ye |
| |
Name: |
Jianhui Ye |
| |
Title: |
Chief Executive Officer |
Exhibit 5.1
Our
ref: CHX/770242-000013/35050360v4
EZGO
Technologies Ltd.
Kingston
Chambers
P.O.
Box 173
Road
Town, Tortola
British
Virgin Islands |
|
11 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 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 up to 351,433 ordinary shares of the Company,
with a par value of US$0.001 par value each (the “Ordinary 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 11 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
11 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 11 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”). |
| 1.8 | A
securities purchase agreement dated 6 September 2023 (the “SPA”) made between, among others, the Company and CVI Investments, Inc.
(the “Purchaser”). |
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
SPA has 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
SPA is, 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 SPA 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
the SPA 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 the SPA
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 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. |
| 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 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 | 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
execution, delivery and performance of the SPA has been authorised by and on behalf of the
Company and, once the SPA has been executed and delivered by any director or officer of the
Company, the SPA 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. |
| 3.4 | 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 SPA 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 paragraph 3.2, 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, 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 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
5
Exhibit 10.1
RD SECURITIES
PURCHASE AGREEMENT
This RD Securities Purchase
Agreement (this “Agreement”) is dated as of September 6, 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).
“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 second (2nd) 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.
“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).
“Foreign
Counsel” means Maples and Calder, as to BVI law and DeHeng Law Offices as to PRC law.
“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.
“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”
means the Common 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 $10 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% 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 each Foreign Counsel, directed to the Placement Agent and the Purchasers, in form and substance reasonably
acceptable to the Placement Agent and Purchasers;
(iii) a
Common Warrant registered in the name of such Purchaser to purchase up to a number of Ordinary Shares equal to the number 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;;
(iv) 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;
(v) on
the date hereof, the Lock-Up Agreements;
(vi) 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;
(vii) a
duly executed and delivered Officers’ Certificate, in customary form reasonably satisfactory to the Placement Agent and its counsel;
(viii) bring
down letters from the Company’s auditors, addressed to the Placement Agent in form and substance reasonably satisfactory in all
material respects; and
(ix) 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: |
[●] |
| Beneficial Ownership Blocker: |
[●] |
| |
|
| Employer Identification Number: |
[●] |
37
Exhibit 10.2
ACKNOWLEDGMENT AND TERMINATION AGREEMENT
THIS ACKNOWLEDGMENT AND TERMINATION AGREEMENT (this
“Agreement”) is made and entered into as of September 11, 2023, by and between EZGO Technologies Ltd.,
a British Virgin Islands business company (the “Company”) and Empery Asset Master, LTD, Empery Tax Efficient,
LP, and Empery Tax Efficient, III, LP (collectively, “Empery” and together with the Company, each individually, a “Party”
and collectively, the “Parties”).
RECITALS
WHEREAS, the Company and Aegis Capital Corp.
(“Placement Agent”) are parties to that certain Engagement Agreement dated August 17, 2023 (the “Engagement
Agreement”);
WHEREAS, pursuant to the Engagement Agreement,
the Placement Agent was appointed to serve as an agent to act as the Company’s exclusive underwriter, placement agent and investment
banker, as applicable;
WHEREAS, on September 6, 2023, the Company
announced entry into a securities purchase agreement (the “Securities Purchase Agreement”) with Empery, Sabby
Volatility Warrant Master Fund, Ltd., and CVI Investments, Inc. (collectively, the “Investors”) to purchase
in the aggregate $10 million of the Company’s ordinary shares and warrants to purchase ordinary shares (the “Transaction”);
WHEREAS, following execution of the Securities
Purchase Agreement, one of the Investors sold shares of stock of the Company (“Pre-Settlement Shares”) and became
unconditionally bound to purchase such Pre-Settlement Shares from the Company pursuant to Section 2.1 of the Securities Purchase Agreement;
and
WHEREAS, the Investors, the Company and
the Placement Agent have come to a mutual agreement as to the Termination of the Securities Purchase Agreement, except as to the obligations
relating to the Pre-Settlement Shares, and not to close the Transaction as contemplated under the terms and conditions of the Securities
Purchase Agreement, as more fully set forth in this Agreement;
NOW, THEREFORE, in consideration of the
mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Parties, intending to be legally bound, agree as follows:
ARTICLE I
TERMINATION OF THE SECURITIES PURCHASE AGREEMENT
1.1 Acknowledgements.
The Parties acknowledge and agree that the Transaction has not been completed and that no shares or warrants (the “Securities”)
other than the Pre-Settlement Shares have been sold or issued by the Company pursuant to the terms of the Securities Purchase Agreement
and no closing of the Transaction will be consummated.
1.2 Agreement.
Each of the Parties agree that the Securities Purchase Agreement is hereby terminated in its entirety and is void ab initio. As
a result of the termination of the Securities Purchase Agreement, each of the Parties agrees that the Investors have no further rights
or obligations thereunder and that the Company has no further rights or obligations thereunder.
1.3 Issuance
of Press Release and Compliance. The Parties hereby agree that promptly after the full execution of termination agreements by the
Investors, Placement Agent and the Company, on its behalf, shall issue a press release, in a form reasonably acceptable to the Company
and the Placement Agent, announcing that the Transaction has been terminated and that the Company is not issuing any of the Securities
to the Investors and that the Investors are not providing any funds to the Company other than with respect to the Pre-Settlement Shares.
Additionally, the Parties agree that the Company is authorized to respond to all inquiries from the Nasdaq Stock Market LLC, the Securities
and Exchange Commission and any other governmental or regulatory authority related to the Transaction and the termination thereof.
1.4 Expenses.
No further payments shall be required to be made by any Party pursuant to the Securities Purchase Agreement. Each Party shall bear its
own costs and expenses in connection therewith. Nothing in this section shall require any Party to repay to any other Party any amounts
previously paid by such Party, pursuant to the terms of the Securities Purchase Agreement.
ARTICLE II
MISCELLANEOUS
2.1. Interpretation.
The words “hereof,” “herein” and words of similar import when used in this Agreement shall refer to this Agreement
as a whole and not to any particular provision of this Agreement. Whenever the word “including” is used in this Agreement,
it shall be deemed to be followed by the words “without limitation.” No provision of this Agreement shall be construed to
require any of the Parties, or any of their respective subsidiaries, affiliates, assigns, or representatives to take any action that would
violate any applicable law.
2.2. Severability.
If any provision of this Agreement is held by a court of competent jurisdiction to be excessive in scope or otherwise invalid or unenforceable,
such provision shall be adjusted rather than voided, if possible, so that it is enforceable to the maximum extent possible, and the validity
and enforceability of the remaining provisions of this Agreement will not in any way be affected or impaired thereby.
2.3. Amendments
and Waivers. No provision of this Agreement may be waived or amended except in a written instrument signed by all of the Parties,
or their assigns where applicable.
2.4. Entire
Agreement. This Agreement contains the entire understanding of the Parties with respect to the subject matter hereof and supersedes
all prior agreements and understandings, oral or written, with respect to such matters, which the Parties acknowledge have been merged
into this Agreement. The Parties acknowledge and agree that none of the Parties has made any representation or promise in connection with
this Agreement that is not contained herein.
2.5. Parties
in Interest. This Agreement shall be binding upon, and inure to the benefit of and be enforceable by, each of the Parties and their
respective successors and assigns.
2.6. Capacity
and Authorization. The Parties agree that the persons executing this Agreement on behalf of the Parties have the necessary and appropriate
authority and capacity to execute, deliver, and perform this Agreement, and that this Agreement is enforceable in accordance with its
terms. The Parties agree that this Agreement is fully and adequately supported by consideration and is fair and reasonable. The Parties
further agree that each Party has: (a) had the opportunity to consult with legal counsel of its choice as such Party may have desired
with respect to all matters resolved herein; (b) participated fully in the negotiation and preparation of this Agreement; and (c) carefully
reviewed this Agreement and is entering into same freely. Accordingly, this Agreement shall not be more strictly construed against any
Party.
2.7 Governing
Law. This Agreement shall be governed by and construed in accordance with the Laws of the State of New York, without reference to
principles of conflict of laws or choice of laws.
2.9. Counterparts.
This Agreement may be executed in two or more identical counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each Party and delivered to the other Parties. Signature pages delivered
by facsimile or e-mail shall have the same force and effect as an original signature
[Signature Page Follows]
[SIGNATURE PAGE TO TERMINATION AGREEMENT]
IN WITNESS WHEREOF, the undersigned have caused
this Termination Agreement to be duly executed as of the day and year first above written.
| |
Company |
| |
|
| |
EZGO Technologies Ltd |
| |
|
|
| |
By: |
/s/ Jianhui Ye |
| |
Name: |
Jianhui Ye |
| |
Title: |
Chief Executive Officer |
| |
|
|
| |
Investor |
| |
|
| |
Empery Asset Master, LTD |
| |
|
|
| |
By: Empery Asset Management, LP, its authorized agent |
| |
|
|
| |
By: |
/s/ Brett Director |
| |
Name: |
Brett Director |
| |
Title: |
General Counsel |
| |
|
|
| |
Empery Tax Efficient, LP |
| |
|
|
| |
By: Empery Asset Management, LP, its authorized agent |
| |
|
|
| |
By: |
/s/ Brett Director |
| |
Name: |
Brett Director |
| |
Title: |
General Counsel |
| |
|
|
| |
Empery Tax Efficient III, LP |
| |
|
|
| |
By: Empery Asset Management, LP, its authorized agent |
| |
|
|
| |
By: |
/s/ Brett Director |
| |
Name: |
Brett Director |
| |
Title: |
General Counsel |
4
Exhibit 10.3
ACKNOWLEDGMENT AND TERMINATION AGREEMENT
THIS ACKNOWLEDGMENT AND TERMINATION AGREEMENT (this
“Agreement”) is made and entered into as of September 11, 2023, by and between EZGO Technologies Ltd.,
a British Virgin Islands business company (the “Company”) and CVI Investments, Inc. (“Heights”
and together with the Company, each individually, a “Party” and collectively, the “Parties”).
RECITALS
WHEREAS, the Company and Aegis Capital Corp.
(“Placement Agent”) are parties to that certain Engagement Agreement dated August 17, 2023 (the “Engagement
Agreement”);
WHEREAS, pursuant to the Engagement Agreement,
the Placement Agent was appointed to serve as an agent to act as the Company’s exclusive underwriter, placement agent and investment
banker, as applicable;
WHEREAS, on September 6, 2023, the Company
announced entry into a securities purchase agreement (the “Securities Purchase Agreement”) with Heights, Sabby
Volatility Warrant Master Fund, Ltd., Empery Asset Master, LTD, Empery Tax Efficient, LP, and Empery Tax Efficient, III, LP (collectively,
the “Investors”) to purchase in the aggregate $10 million of the Company’s ordinary shares and warrants
to purchase ordinary shares (the “Transaction”);
WHEREAS, following execution of the Securities
Purchase Agreement, Heights sold an aggregate of 351,433 shares of stock of the Company (“Pre-Settlement Shares”)
and became unconditionally bound to purchase such Pre-Settlement Shares from the Company pursuant to Section 2.1 of the Securities Purchase
Agreement;
WHEREAS, on September 11, 2023, the
Company issued the Pre-Settlement Shares to Heights and Heights purchased the Pre-Settlement Shares for aggregate payment of $397,119.29;
and
WHEREAS, the Investors, the Company and the
Placement Agent have come to a mutual agreement as to the Termination of the Securities Purchase Agreement, except as to the obligations
relating to the Pre-Settlement Shares, and not to close the Transaction as contemplated under the terms and conditions of the Securities
Purchase Agreement, as more fully set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual
covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties, intending to be legally bound, agree as follows:
ARTICLE I
TERMINATION OF THE SECURITIES PURCHASE AGREEMENT
1.1 Acknowledgements.
The Parties acknowledge and agree that the Transaction has not been completed and that no shares or warrants (the “Securities”)
other than the Pre-Settlement Shares have been sold or issued by the Company pursuant to the terms of the Securities Purchase Agreement
and no closing of the Transaction will be consummated. The Parties further acknowledge and agree that the Pre-Settlement Shares have been
issued to Heights and that Heights has paid in full for such Pre-Settlement Shares.
1.2 Agreement.
Each of the Parties agree that the Securities Purchase Agreement is hereby terminated in its entirety effective as of the date hereof.
As a result of the termination of the Securities Purchase Agreement, each of the Parties agrees that the Investors have no further rights
or obligations thereunder and that the Company has no further rights or obligations thereunder.
1.3 Issuance
of Press Release and Compliance. The Parties hereby agree that promptly after the full execution of termination Agreements by the
Investors, Placement Agent, and the Company, the Company, on its behalf, shall issue a press release, in a form reasonably acceptable
to the Company and the Placement Agent, announcing that the Transaction has been terminated and that the Company is not issuing any of
the Securities to the Investors and that the Investors are not providing any funds to the Company other than with respect to the Pre-Settlement
Shares. Additionally, the Parties agree that the Company is authorized to respond to all inquiries from the Nasdaq Stock Market LLC, the
Securities and Exchange Commission and any other governmental or regulatory authority related to the Transaction and the termination thereof.
1.4 Expenses.
No further payments shall be required to be made by any Party pursuant to the Securities Purchase Agreement . Each Party shall bear its
own costs and expenses in connection therewith. Nothing in this section shall require any Party to repay to any other Party any amounts
previously paid by such Party, pursuant to the terms of the Securities Purchase Agreement.
ARTICLE II
MISCELLANEOUS
2.1. Interpretation.
The words “hereof,” “herein” and words of similar import when used in this Agreement shall refer to this Agreement
as a whole and not to any particular provision of this Agreement. Whenever the word “including” is used in this Agreement,
it shall be deemed to be followed by the words “without limitation.” No provision of this Agreement shall be construed to
require any of the Parties, or any of their respective subsidiaries, affiliates, assigns, or representatives to take any action that would
violate any applicable law.
2.2. Severability.
If any provision of this Agreement is held by a court of competent jurisdiction to be excessive in scope or otherwise invalid or unenforceable,
such provision shall be adjusted rather than voided, if possible, so that it is enforceable to the maximum extent possible, and the validity
and enforceability of the remaining provisions of this Agreement will not in any way be affected or impaired thereby.
2.3. Amendments
and Waivers. No provision of this Agreement may be waived or amended except in a written instrument signed by all of the Parties,
or their assigns where applicable.
2.4. Entire
Agreement. This Agreement contains the entire understanding of the Parties with respect to the subject matter hereof and supersedes
all prior agreements and understandings, oral or written, with respect to such matters, which the Parties acknowledge have been merged
into this Agreement. The Parties acknowledge and agree that none of the Parties has made any representation or promise in connection with
this Agreement that is not contained herein.
2.5. Parties
in Interest. This Agreement shall be binding upon, and inure to the benefit of and be enforceable by, each of the Parties and their
respective successors and assigns.
2.6. Capacity
and Authorization. The Parties agree that the persons executing this Agreement on behalf of the Parties have the necessary and appropriate
authority and capacity to execute, deliver, and perform this Agreement, and that this Agreement is enforceable in accordance with its
terms. The Parties agree that this Agreement is fully and adequately supported by consideration and is fair and reasonable. The Parties
further agree that each Party has: (a) had the opportunity to consult with legal counsel of its choice as such Party may have desired
with respect to all matters resolved herein; (b) participated fully in the negotiation and preparation of this Agreement; and (c) carefully
reviewed this Agreement and is entering into same freely. Accordingly, this Agreement shall not be more strictly construed against any
Party.
2.7 Governing
Law. This Agreement shall be governed by and construed in accordance with the Laws of the State of New York, without reference to
principles of conflict of laws or choice of laws.
2.9. Counterparts.
This Agreement may be executed in two or more identical counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each Party and delivered to the other Parties. Signature pages delivered
by facsimile or e-mail shall have the same force and effect as an original signature.
[Signature Page Follows]
[SIGNATURE PAGE TO TERMINATION AGREEMENT]
IN WITNESS WHEREOF, the undersigned have caused
this Termination Agreement to be duly executed as of the day and year first above written.
| |
Company |
| |
|
| |
EZGO Technologies Ltd |
| |
|
|
| |
By: |
/s/ Jianhui Ye |
| |
Name: |
Jianhui Ye |
| |
Title: |
Chief Executive Officer |
| |
|
|
| |
Investor |
| |
|
| |
CVI Investments, Inc. |
| |
|
|
| |
By: Heights Capital Management, Inc., its authorized agent |
| |
|
|
| |
By: |
/s/ Sam Winer |
| |
Name: |
Sam Winer |
| |
Title: |
Authorized Signatory |
4
Exhibit 10.4
ACKNOWLEDGMENT AND TERMINATION AGREEMENT
THIS ACKNOWLEDGMENT AND TERMINATION AGREEMENT (this
“Agreement”) is made and entered into as of September 11, 2023, by and between EZGO Technologies Ltd.,
a British Virgin Islands business company (the “Company”) and Sabby Volatility Warrant Master Fund, Ltd. (the
“Sabby” and together with the Company, each individually, a “Party” and collectively, the
“Parties”).
RECITALS
WHEREAS, the Company and Aegis Capital Corp.
(“Placement Agent”) are parties to that certain Engagement Agreement dated August 17, 2023 (the “Engagement
Agreement”);
WHEREAS, pursuant to the Engagement Agreement,
the Placement Agent was appointed to serve as an agent to act as the Company’s exclusive underwriter, placement agent and investment
banker, as applicable;
WHEREAS, on September 6, 2023, the Company
announced entry into a securities purchase agreement (the “Securities Purchase Agreement”) with Sabby, CVI Investments,
Inc., Empery Asset Master, LTD, Empery Tax Efficient, LP, and Empery Tax Efficient, III, LP (collectively, the “Investors”)
to purchase in the aggregate $10 million of the Company’s ordinary shares and warrants to purchase ordinary shares (the “Transaction”);
WHEREAS, following execution of the Securities
Purchase Agreement, one of the Investors sold shares of stock of the Company (“Pre-Settlement Shares”) and became
unconditionally bound to purchase such Pre-Settlement Shares from the Company pursuant to Section 2.1 of the Securities Purchase Agreement;
and
WHEREAS, the Investors, the Company and
the Placement Agent have come to a mutual agreement as to the Termination of the Securities Purchase Agreement and not to close the Transaction
as contemplated under the terms and conditions of the Securities Purchase Agreement, as more fully set forth in this Agreement;
NOW, THEREFORE, in consideration of the
mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Parties, intending to be legally bound, agree as follows:
ARTICLE I
TERMINATION OF THE SECURITIES PURCHASE AGREEMENT
1.1 Acknowledgements.
The Parties acknowledge and agree that the Transaction has not been completed and that no shares or warrants (the “Securities”)
other than the Pre-Settlement Shares have been sold or issued by the Company pursuant to the terms of the Securities Purchase Agreement
and no closing of the Transaction will be consummated.
1.2 Agreement.
Each of the Parties agree that the Securities Purchase Agreement is hereby terminated in its entirety and is void ab initio. As
a result of the termination of the Securities Purchase Agreement, each of the Parties agrees that the Investors have no further rights
or obligations thereunder and that the Company has no further rights or obligations thereunder.
1.3 Issuance
of Press Release and Compliance. The Parties hereby agree that promptly after the full execution of termination agreements by the
Investors, Placement Agent, and the Company, the Company, on its behalf, shall issue a press release, in a form reasonably acceptable
to the Company and the Placement Agent, announcing that the Transaction has been terminated and that the Company is not issuing any of
the Securities to the Investors and that the Investors are not providing any funds to the Company other than with respect to the Pre-Settlement
Shares. Additionally, the Parties agree that the Company is authorized to respond to all inquiries from the Nasdaq Stock Market LLC, the
Securities and Exchange Commission and any other governmental or regulatory authority related to the Transaction and the termination thereof.
1.4 Expenses.
No further payments shall be required to be made by any Party pursuant to the Securities Purchase Agreement. Each Party shall bear its
own costs and expenses in connection therewith. Nothing in this section shall require any Party to repay to any other Party any amounts
previously paid by such Party, pursuant to the terms of the Securities Purchase Agreement.
ARTICLE II
MISCELLANEOUS
2.1. Interpretation.
The words “hereof,” “herein” and words of similar import when used in this Agreement shall refer to this Agreement
as a whole and not to any particular provision of this Agreement. Whenever the word “including” is used in this Agreement,
it shall be deemed to be followed by the words “without limitation.” No provision of this Agreement shall be construed to
require any of the Parties, or any of their respective subsidiaries, affiliates, assigns, or representatives to take any action that would
violate any applicable law.
2.2. Severability.
If any provision of this Agreement is held by a court of competent jurisdiction to be excessive in scope or otherwise invalid or unenforceable,
such provision shall be adjusted rather than voided, if possible, so that it is enforceable to the maximum extent possible, and the validity
and enforceability of the remaining provisions of this Agreement will not in any way be affected or impaired thereby.
2.3. Amendments
and Waivers. No provision of this Agreement may be waived or amended except in a written instrument signed by all of the Parties,
or their assigns where applicable.
2.4. Entire
Agreement. This Agreement contains the entire understanding of the Parties with respect to the subject matter hereof and supersedes
all prior agreements and understandings, oral or written, with respect to such matters, which the Parties acknowledge have been merged
into this Agreement. The Parties acknowledge and agree that none of the Parties has made any representation or promise in connection with
this Agreement that is not contained herein.
2.5. Parties
in Interest. This Agreement shall be binding upon, and inure to the benefit of and be enforceable by, each of the Parties and their
respective successors and assigns.
2.6. Capacity
and Authorization. The Parties agree that the persons executing this Agreement on behalf of the Parties have the necessary and appropriate
authority and capacity to execute, deliver, and perform this Agreement, and that this Agreement is enforceable in accordance with its
terms. The Parties agree that this Agreement is fully and adequately supported by consideration and is fair and reasonable. The Parties
further agree that each Party has: (a) had the opportunity to consult with legal counsel of its choice as such Party may have desired
with respect to all matters resolved herein; (b) participated fully in the negotiation and preparation of this Agreement; and (c) carefully
reviewed this Agreement and is entering into same freely. Accordingly, this Agreement shall not be more strictly construed against any
Party.
2.7 Governing
Law. This Agreement shall be governed by and construed in accordance with the Laws of the State of New York, without reference to
principles of conflict of laws or choice of laws.
2.9. Counterparts.
This Agreement may be executed in two or more identical counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each Party and delivered to the other Parties. Signature pages delivered
by facsimile or e-mail shall have the same force and effect as an original signature
[Signature Page Follows]
[SIGNATURE PAGE TO TERMINATION AGREEMENT]
IN WITNESS WHEREOF, the undersigned have caused
this Termination Agreement to be duly executed as of the day and year first above written.
| |
Company |
| |
|
|
| |
EZGO Technologies Ltd |
| |
|
|
| |
By: |
/s/ Jianhui Ye |
| |
Name: |
Jianhui Ye |
| |
Title: |
Chief Executive Officer |
| |
|
|
| |
Investor |
| |
|
|
| |
Sabby Volatility Warrant Master Fund, Ltd. |
| |
|
|
| |
By: |
/s/ Robert Grundstein |
| |
Name: |
Robert Grundstein |
| |
Title: |
COO of Investment Manager |
4
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 11, 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
direct offering (the “Offering”) of 351,433 ordinary shares, par value of $0.001 per share (the “Ordinary
Share”), at $1.13 per Ordinary Share, 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 the Termination of the Previously Proposed Registered
Direct Offering
CHANGZHOU, China, September 11, 2023 /PRNewswire/
-- EZGO Technologies Ltd. (Nasdaq: EZGO) ("EZGO" or the "Company"), a leading short-distance transportation solutions
provider in China, today announced that the previously announced registered direct offering to issue 8,849,558 Ordinary Shares and warrants
to purchase 8,849,558 Ordinary Shares to certain institutional investors was terminated, except for the sale of 351,433 pre-settlement
Ordinary Shares which were sold at the price of $1.13 per share to an investor.
This press release shall not constitute an offer
to sell or a 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.
CONTACT: Shawn Wen, +86-13502829216, ir@ez-go.com.cn
EZGO Technologies (NASDAQ:EZGO)
Historical Stock Chart
From Apr 2024 to May 2024
EZGO Technologies (NASDAQ:EZGO)
Historical Stock Chart
From May 2023 to May 2024
