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0001879848
0001879848
2024-01-25
2024-01-25
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xbrli:shares
United States
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
Current Report
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
January
25, 2024
Date of Report (Date of earliest event reported)
Phoenix Motor Inc.
(Exact Name of Registrant as Specified in its Charter)
| Delaware |
|
001-41414 |
|
85-4319789 |
| (State or other jurisdiction of incorporation) |
|
(Commission File Number) |
|
(I.R.S. Employer Identification No.) |
|
1500 Lakeview Loop
Anaheim, CA |
|
92807 |
| (Address of Principal Executive Offices) |
|
(Zip Code) |
Registrant’s telephone number, including
area code: (909) 987-0815
N/A
(Former name or former address, if changed since
last report)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| |
¨ |
Written communications pursuant to Rule 425 under the Securities Act |
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¨ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act |
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¨ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act |
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¨ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class |
|
Trading Symbol(s) |
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Name of each exchange on which registered |
| Common Stock, par value $0.0004 per share |
|
PEV |
|
NASDAQ Capital Market |
| x |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter). |
|
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. |
Item 1.01. Entry into a Material Definitive
Agreement.
Securities Purchase Agreement
On January 4, 2024, Phoenix
Motor Inc., a Delaware corporation (the “Company”), entered into a Securities Purchase Agreement (the “Securities
Purchase Agreement”) with an accredited investor (the “Purchaser” ), relating to a private placement (the
“Private Placement”) by the Company pursuant to which the Company issued 600,000 shares (the “Shares”)
of the Company’s common stock (the “Common Stock”) at a purchase price of $1.13 per share, and a Common Stock
purchase warrant (the “Warrant”) to purchase up to 600,000 shares of Common Stock, exercisable at $1.13 per share (the
“Warrant Shares” and, together with the Warrants and the Shares, the “Securities”).
The Warrant is immediately
exercisable, in whole or in part, for a term of one year following issuance and may be exercised on a cashless basis if a registration
statement is not then effective and available for the resale of the Warrant Shares. The exercise price and number of Warrant Shares issuable
upon exercise of the Warrant are subject to adjustment upon the occurrence of certain events, such as stock splits, stock dividends, split-ups,
recapitalizations, reclassifications or the like.
The Private Placement
closed on January 25, 2024 and the Company received gross proceeds from the Private Placement of approximately $678,000, before deducting
offering expenses payable by the Company. The Company expects to use the proceeds from the Private Placement to fund working capital and
other general corporate purposes.
The foregoing descriptions
of the Securities Purchase Agreement and the Warrant do not purport to describe all of the terms and provisions thereof and are qualified
in their entirety by reference to the form of Securities Purchase Agreement and the form of Warrant which are filed as Exhibits 10.1 and
4.1, respectively, to this Current Report on Form 8-K and are incorporated herein by reference.
Item 3.02. Unregistered Sales of Equity Securities.
As described more fully in Item 1.01 above, the
Securities are not registered under the Securities Act of 1933, as amended (the “Securities Act”), and are being offered
and sold in a private placement pursuant to an exemption from the registration requirements of Section 5 of the Securities Act contained
in Section 4(a)(2) thereof and/or Regulation D thereunder.
Item 9.01. Financial Statement
and Exhibits.
(d) Exhibits.
| * |
Portions of this exhibit have been redacted in accordance with Item 601(b)(10) of Regulation S-K. The omitted information is not material and is the type that the registrant treats as private or confidential. |
| ^ |
Certain of the exhibits and schedules to this exhibit have been omitted in accordance with Regulation S-K Item 601(a)(5). The Registrant agrees to furnish a copy of all omitted exhibits and schedules to the SEC upon its request. |
SIGNATURE
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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PHOENIX MOTOR INC. |
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| Dated: January 31, 2024 |
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By: |
/s/ Chris Wang |
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Name: Chris Wang |
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Title: Chief Financial Officer |
EXHIBIT 4.1
EXHIBIT A
WARRANT TO PURCHASE COMMON
STOCK
THIS WARRANT AND THE
UNDERLYING SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR THE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THE SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, TRANSFERRED
OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER APPLICABLE SECURITIES LAWS OR UNLESS OFFERED,
SOLD, PLEDGED, HYPOTHECATED OR TRANSFERRED PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THOSE LAWS. THE COMPANY
SHALL BE ENTITLED TO REQUIRE AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED TO THE EXTENT THAT
AN OPINION IS REQUIRED PURSUANT TO THE AGREEMENT UNDER WHICH THE SECURITIES WERE ISSUED.
PHOENIX MOTOR INC.
WARRANT TO PURCHASE
COMMON STOCK
Void After January
25, 2025
THIS CERTIFIES
THAT, for value received and subject to the terms and conditions set forth below,[___________], or assigns (the
“Holder”), is entitled to subscribe for and purchase at the Exercise Price (defined below) from Phoenix
Motor Inc., a Delaware corporation, with its principal office at 1500 Lakeview Loop, Anaheim, CA 92807 (the
“Company”) 600,000 shares of the Common Stock of the Company (the “Common
Stock”), subject to adjustment as provided herein. This Warrant is being issued pursuant to the terms of the
Securities Purchase Agreement, dated January 4, 2024, by and among the Company and the original Holder of this Warrant and the other
parties named therein (the “Purchase Agreement”). Capitalized terms not otherwise defined herein shall
have the respective meanings ascribed to such terms in the Purchase Agreement.
1. DEFINITIONS.
As used herein, the following terms shall have the following respective meanings:
(a) “Exercise
Period” shall mean the period commencing on the date of issuance and ending January 25, 2025, unless sooner terminated as
provided below.
(b) “Exercise
Price” shall mean $1.22 per Warrant Share, subject to adjustment pursuant to Section 5 below.
(c) “Warrant
Shares” shall mean the shares of the Company’s Common Stock issuable upon exercise of this Warrant, subject to adjustment
pursuant to the terms herein, including but not limited to adjustment pursuant to Section 5 below.
2. EXERCISE OF WARRANT.
2.1. Method of Exercise.
The rights represented by this Warrant may be exercised in whole or in part at any time during the Exercise Period, by delivery of the
following to the Company at its address set forth above (or at such other address as it may designate by notice in writing to the Holder):
(a) An executed
Notice of Exercise in the form attached hereto;
(b) Payment
of the Exercise Price either (i) in cash or by check or wire transfer of immediately available funds, or (ii) pursuant to a
Cashless Exercise, if then permitted, as described below; and
(c) This
Warrant.
Upon the exercise of
the rights represented by this Warrant, shares of Common Stock shall be issued for the Warrant Shares so purchased, and shall be registered
in the name of the Holder or persons affiliated with the Holder, if the Holder so designates, on or before the third (3rd) Trading
Day after the rights represented by this Warrant shall have been so exercised and shall be issued in certificate form and delivered to
the Holder, if so requested.
The person in whose name
any Warrant Shares are to be issued upon exercise of this Warrant shall be deemed to have become the holder of record of such shares on
the date on which this Warrant was surrendered and payment of the Exercise Price was made, irrespective of the date of issuance of the
shares of Common Stock, except that, if the date of such surrender and payment is a date when the stock transfer books of the Company
are closed, such person shall be deemed to have become the holder of such shares at the close of business on the next succeeding date
on which the stock transfer books are open.
2.2. Cashless Exercise.
Notwithstanding any provisions herein to the contrary, if, at any time during the Exercise Period a registration statement is not then
effective and available for the resale of the Warrant Shares, then the Holder may, in lieu of exercising this Warrant for cash pursuant
to Section 2.1, elect to exercise the Warrant on a cashless basis by surrendering this Warrant at the principal office of the Company,
together with the properly endorsed Notice of Exercise, and the Company shall thereupon issue to the Holder a number of shares of Common
Stock computed using the following formula:
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X = |
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Y(B – A) |
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D |
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| Where: |
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X = |
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the number of shares of Common Stock to be issued to the Holder |
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Y = |
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the number of shares of Common Stock purchasable upon exercise of all of the Warrant or, if only a portion of the Warrant is being exercised, the portion of the Warrant being exercised. |
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A = |
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the Exercise Price. |
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B = |
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the Current Market Price of one share of Common Stock. |
“Current
Market Price” means on any particular date:
(a) if
the Common Stock is traded on any registered national stock exchange, including the NYSE, NASDAQ or NYSE Amex (each, a “National
Exchange”), the closing price of the Common Stock of the Company on such market on the day prior to the applicable date
of valuation;
(b) if
the Common Stock is traded over-the-counter, but not on a National Exchange, the closing bid price of the Common Stock of the Company
on the day prior to the applicable date of valuation; and
(c) if
there is no active public market for the Common Stock, the value thereof, as determined in good faith by the Board of Directors of the
Company upon due consideration of the proposed determination thereof by the Holder.
2.3. Partial Exercise.
If this Warrant is exercised in part only, the Company shall, upon surrender of this Warrant, execute and deliver, within 10 days of the
date of exercise, a new Warrant evidencing the rights of the Holder, or such other person as shall be designated in the Notice of Exercise,
to purchase the balance of the Warrant Shares purchasable hereunder. If the Holder exercises this Warrant or attempts to exercise this
Warrant before the Company shall have delivered to the Holder a new Warrant as contemplated above, then the Holder shall be deemed to
have validly exercised this Warrant pursuant to this Section 2 without having complied with the requirements of Section 2.1(c).
In no event shall this Warrant be exercised for a fractional Warrant Share, and the Company shall not distribute a Warrant exercisable
for a fractional Warrant Share. Fractional Warrant Shares shall be treated as provided in Section 6 hereof.
2.4. No Settlement
for Cash. The Warrant cannot be settled with the Company for cash.
2.5. Exercise Limitation.
Notwithstanding any provisions herein to the contrary, the Holder shall not be entitled to exercise this Warrant for a number of Warrant
Shares in excess of that number of Warrant Shares which, upon giving effect to such exercise, would cause the aggregate number of shares
of Common Stock beneficially owned by the Holder to exceed 9.99% of the outstanding shares of the Common Stock following such exercise.
For purposes of the foregoing proviso, the aggregate number of shares of Common Stock beneficially owned by the Holder shall include the
number of shares of Common Stock issuable upon exercise of this Warrant with respect to which determination of such proviso is being made,
but shall exclude the shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrants beneficially
owned by the Holder and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company
beneficially owned by the Holder subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except
as set forth in the preceding sentence, for purposes of this Section 2.5, beneficial ownership shall be calculated in accordance
with Section 13(d) of the Exchange Act. Notwithstanding the foregoing, the Holder may waive the foregoing limitation, or increase
or decrease the foregoing limitation to any other percentage, by written notice to the Company; provided that a waiver by the Holder of
the foregoing limitation or a request to increase such limitation requires not less than 61 days prior written notice (with such waiver
of the foregoing limitation or request to increase such limitation taking effect only upon the expiration of such 61 day notice period
and applying only to the Holder and not to any other holder of Warrants sold pursuant to the Purchase Agreement). For purposes of this
Section 2.5, in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares
of Common Stock as reflected in (x) the Company’s most recent quarterly report on Form 10-Q or annual report on Form 10-K,
as the case may be, filed with the SEC on the date thereof, (y) a more recent public announcement by the Company or (z) any
other notice by the Company or its transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written request
of the Holder, the Company shall within three (3) Business Days confirm in writing or by electronic mail to the Holder the number
of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving
effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder since the date as of which such
number of outstanding shares of Common Stock was reported.
3. COVENANTS OF THE
COMPANY.
3.1. Covenants as
to Warrant Shares. If at any time the number of authorized but unissued shares of Common Stock shall not be sufficient to permit exercise
of this Warrant, the Company will take such corporate action as may, in the opinion of its counsel, be necessary to increase its authorized
but unissued shares of Common Stock (or other securities as provided herein) to such number of shares as shall be sufficient for such
purposes.
3.2. No Impairment.
Except and to the extent as waived or consented to by the Holder or otherwise in accordance with Section 12 hereof, the Company will
not, by amendment of its Certificate of Incorporation (as such may be amended from time to time), or through any means, avoid or seek
to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Company, but will at all times
in good faith assist in the carrying out of all the provisions of this Warrant and in the taking of all such action as may be necessary
or appropriate in order to protect the exercise rights of the Holder against impairment.
3.3. Notices of Record
Date. In the event of any taking by the Company of a record of the holders of any class of securities for the purpose of determining
the holders thereof who are entitled to receive any dividend (other than a cash dividend which is the same as cash dividends paid in previous
quarters) or other distribution, the Company
shall mail to the Holder,
at least ten (10) days prior to the date specified herein, a notice specifying the date on which any such record is to be taken for
the purpose of such dividend or distribution.
4. REPRESENTATIONS
OF HOLDER.
4.1. Acquisition of
Warrant for Personal Account. The Holder represents and warrants that it is acquiring the Warrant and the Warrant Shares solely for
its account for investment and not with a present view toward the public or distribution of said Warrant or Warrant Shares or any part
thereof and has no intention of selling or distributing said Warrant or Warrant Shares or any arrangement or understanding with any other
persons regarding the sale or distribution of said Warrant, except as would not result in a violation of the Securities Act. The Holder
will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise
acquire or take a pledge of) the Warrant except in accordance with the Securities Act and will not, directly or indirectly, offer, sell,
pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) the Warrant
Shares except in accordance with the provisions of Section 10 of the Purchase Agreement or pursuant to and in accordance with the
Securities Act.
4.2. Securities Are
Not Registered.
(a) The Holder
understands that the offer and sale of the Warrant or the Warrant Shares have not been registered under the Securities Act on the basis
that no distribution or public offering of the stock of the Company is to be effected. The Holder realizes that the basis for the exemption
may not be present if, notwithstanding its representations, the Holder has a present intention of acquiring the securities for a fixed
or determinable period in the future, selling (in connection with a distribution or otherwise), granting any participation in, or otherwise
distributing the securities. The Holder has no such present intention.
(b) The Holder
recognizes that the Warrant and the Warrant Shares must be held indefinitely unless they are subsequently registered under the Securities
Act or an exemption from such registration is available. The Holder recognizes that the Company has no obligation to register the Warrant
or, except as provided in the Purchase Agreement, the Warrant Shares, or to comply with any exemption from such registration.
(c) The Holder
is aware that neither the Warrant nor the Warrant Shares may be sold pursuant to Rule 144 adopted under the Securities Act unless certain
conditions are met, including, among other things, the existence of a public market for the shares, the availability of certain current
public information about the Company, the resale following the required holding period under Rule 144 and the number of shares being sold
during any three month period not exceeding specified limitations. Holder is aware that any such sale made in reliance on Rule 144, if
Rule 144 is available, may be made only in accordance with the terms of Rule 144.
4.3. Disposition of
Warrant and Warrant Shares.
(a) The Holder
further agrees not to make any disposition of all or any part of the Warrant or Warrant Shares in any event unless and until:
(i) The Company shall
have received a letter secured by the Holder from the SEC stating that no action will be recommended to the SEC with respect to the proposed
disposition;
(ii) There is then in
effect a registration statement under the Securities Act covering such proposed disposition and such disposition is made in accordance
with said registration statement; or
(iii) The Holder shall
have notified the Company of the proposed disposition and shall have furnished the Company with a detailed statement of the circumstances
surrounding the proposed disposition, and if reasonably requested by the Company, the Holder shall have furnished the Company with an
opinion of counsel, reasonably satisfactory to the Company, for the Holder to the effect that such disposition will not require registration
of such Warrant or Warrant Shares under the Securities Act or any applicable state securities laws; provided, that no opinion shall be
required for any disposition made or to be made in accordance with the provisions of Rule 144.
(b) The Holder
understands and agrees that all certificates evidencing the Warrant Shares to be issued to the Holder may bear a legend in substantially
the following form; provided, that such legend shall be removed (or such Warrant Shares shall be issued without such legend upon exercise
of this Warrant) as required pursuant to Section 8 of the Purchase Agreement:
THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY APPLICABLE STATE SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED
FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR
APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED OR UNLESS
SOLD PURSUANT TO RULE 144 OF SUCH ACT.
5. ADJUSTMENT OF EXERCISE
PRICE. In the event of changes in the outstanding Common Stock of the Company by reason of stock dividends, split-ups, recapitalizations,
reclassifications, combinations or exchanges of shares, separations, reorganizations, liquidations, or the like, the number and class
of shares available under the Warrant in the aggregate and the Exercise Price shall be correspondingly adjusted to give the Holder of
the Warrant, on exercise for the same aggregate Exercise Price, the total number, class, and kind of shares as the Holder would have owned
had the Warrant been exercised prior to the event and had the Holder continued to hold such shares until after the event requiring adjustment. The
form of this Warrant need not be changed because of any adjustment in the number, class, and kind of shares subject to this Warrant. The
Company shall promptly provide a certificate from an authorized officer notifying the Holder in writing of any adjustment in the Exercise
Price and/or the total number, class, and kind of shares issuable upon exercise of this Warrant, which certificate shall specify the Exercise
Price and number, class and kind of shares under this Warrant after giving effect to such adjustment.
6. FRACTIONAL SHARES. No
fractional shares shall be issued upon the exercise of this Warrant as a consequence of any adjustment pursuant hereto. All
Warrant Shares (including fractions) issuable upon exercise of this Warrant may be aggregated for purposes of determining whether the
exercise would result in the issuance of any fractional share. If, after aggregation, the exercise would result in the issuance
of a fractional share, the Company shall, in lieu of issuance of any fractional share, pay the Holder otherwise entitled to such fraction
a sum in cash equal to the product resulting from multiplying the then current fair market value of an Exercise Share by such fraction.
7. CERTAIN EVENTS. In
the event of, at any time during the Exercise Period, any capital reorganization, or any reclassification of the capital stock of the
Company (other than a change in par value or from par value to no par value or no par value to par value or as a result of a stock dividend
or subdivision, split-up or combination of shares), or the consolidation or merger of the Company with or into another corporation (other
than a merger solely to effect a reincorporation of the Company into another state), in each case, in which the stockholders of the Company
immediately prior to such capital reorganization, reclassification, consolidation or merger, will hold less than a majority of the outstanding
shares of the Company or resulting corporation immediately after such capital reorganization, reclassification, consolidation or merger,
or the sale or other disposition of all or substantially all of the properties and assets of the Company and its subsidiaries, taken as
a whole, in its entirety to any other person, other than sales or other dispositions that do not require stockholder approval (each, an
“Event”), the Company shall provide to the Holder ten (10) days’ advance written notice of such Event,
and the Holder shall have the option, in its sole discretion and upon providing advanced written notice to the Company, to cause any unexercised
portion of the Warrant to be deemed automatically exercised pursuant to Section 2.2 immediately prior to the consummation of such
Event. This Warrant will be binding upon the successors and assigns of the Company upon an Event.
8. RIGHTS UPON DISTRIBUTION
OF ASSETS; RIGHTS OFFERINGS.
8.1. If the
Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of shares
of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities,
property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar
transaction) (a “Distribution”), at any time after the issuance of this Warrant, then, in each such case,
upon each exercise of this Warrant from time to time, in whole or in part, the Holder shall be entitled to participate in such Distribution
to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable
upon each such exercise of this Warrant immediately before the date of which a record is taken for such Distribution, or, if no such record
is taken, the date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution.
To the extent that the Holder’s participation in any Distribution is limited by virtue of the beneficial ownership limitations set
forth in Section 2.5, then the portion of such Distribution that is so-limited shall be held in abeyance for the benefit of the Holder
until such time, if ever, as its right thereto would not result in the Holder exceeding the beneficial ownership limits set forth in Section 2.5.
8.2. In addition
to any adjustments pursuant to Section 5 above, if at any time the Company grants, issues or sells any Options, Convertible Securities
or rights to purchase stock, warrants, securities or other property pro rata to the record holders of the Common Stock (the “Purchase
Rights”), then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate
Purchase Rights which the Holder could have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete
exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) immediately before the date on which a record
is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders
of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights. For purposes of this Section 8.2:
(i) “Convertible Securities” shall mean any stock or securities (other than Options) directly or indirectly
convertible into or exercisable or exchangeable for shares of Common Stock; and (ii) “Options” shall mean
any rights, warrants or options to subscribe for or purchase shares of Common Stock or Convertible Securities.
9. NO STOCKHOLDER
RIGHTS. This Warrant in and of itself shall not entitle the Holder to any voting rights or, except as otherwise set forth herein,
other rights as a stockholder of the Company.
10. TRANSFER OF WARRANT. Subject
to applicable laws and compliance with Section 4.3 hereof, this Warrant and all rights hereunder are transferable, by the Holder
in person or by duly authorized attorney, upon delivery of this Warrant and the form of assignment attached hereto to any transferee designated
by Holder. The transferee shall sign an investment letter in form and substance satisfactory to the Company.
11. LOST, STOLEN,
MUTILATED OR DESTROYED WARRANT. If this Warrant is lost, stolen, mutilated or destroyed, the Company may, on such terms as to
indemnity or otherwise as it may reasonably impose (which shall, in the case of a mutilated Warrant, include the surrender thereof), issue
a new Warrant of like denomination and tenor as the Warrant so lost, stolen, mutilated or destroyed. Any such new Warrant
shall constitute an original contractual obligation of the Company, whether or not the allegedly lost, stolen, mutilated or destroyed
Warrant shall be at any time enforceable by anyone.
12. MODIFICATIONS
AND WAIVER. This Warrant and any provision hereof may be changed, waived, discharged or terminated only by an instrument in writing
signed by the Company and (i) Purchasers holding Warrants representing at least 50% of the number of Warrant Shares then issuable
upon exercise of the Warrants sold under the Purchase Agreement, provided, however, that such modification, amendment or waiver is made
with respect to all Warrants issued under the Purchase Agreement and does not adversely affect the Holder without adversely affecting
all holders of Warrants in a similar manner; or (ii) the Holder.
13. NOTICES, ETC. All
notices required or permitted hereunder shall be in writing and shall be deemed effectively given: (a) upon personal delivery to
the party to be notified, (b) when sent by confirmed email or facsimile if sent during normal business hours of the recipient, if
not, then on the next business day, (c) five days after having been sent by registered or certified mail, return receipt requested,
postage prepaid, or (d) one business day after deposit with a nationally recognized overnight courier, specifying next day delivery,
with written verification of receipt. All communications shall be sent to the Company at the address set forth above and to
the Holders at the addresses listed on the signature page to the Purchase Agreement, or at such other address as the Company or Holder
may designate by ten days’ advance written notice to the other party hereto.
14. ACCEPTANCE. Receipt
of this Warrant by the Holder shall constitute acceptance of and agreement to all of the terms and conditions contained herein.
15. GOVERNING LAW. This
Warrant and all rights, obligations and liabilities hereunder shall be governed by the laws of the State of New York without regard to
the principles of conflict of laws.
16. DESCRIPTIVE HEADINGS. The
descriptive headings of the several paragraphs of this Warrant are inserted for convenience only and do not constitute a part of this
Warrant. The language in this Warrant shall be construed as to its fair meaning without regard to which party drafted this
Warrant.
17. SEVERABILITY. The
invalidity or unenforceability of any provision of this Warrant in any jurisdiction shall not affect the validity or enforceability of
such provision in any other jurisdiction, or affect any other provision of this Warrant, which shall remain in full force and effect.
18. ENTIRE AGREEMENT. This
Warrant and the Purchase Agreement constitute the entire agreement between the parties pertaining to the subject matter contained in it
and supersede all prior and contemporaneous agreements, representations, and undertakings of the parties, whether oral or written, with
respect to such subject matter.
[Signature Page Follows]
IN WITNESS WHEREOF,
the Company has caused this Warrant to be executed by its duly authorized officer as of January 25, 2024.
PHOENIX MOTOR INC.
| By: |
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/s/ Xiaofeng Peng |
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| Name: |
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Xiaofeng Peng |
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| Title: |
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Chief Executive Officer |
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NOTICE OF EXERCISE
TO: PHOENIX MOTOR
INC.
(1) The undersigned
hereby elects to (check one box only):
q purchase shares
of the Common Stock of Phoenix Motor Inc. (the “Company”) pursuant to the terms of the attached Warrant, and
tenders herewith payment of the exercise price in full for such shares, together with all applicable transfer taxes, if any.
q purchase the number
of shares of Common Stock of the Company by cashless exercise, to the extent permitted under Section 2.2, pursuant to the terms of
the Warrant as shall be issuable upon cashless exercise of the portion of the Warrant relating to shares,
and shall tender payment of all applicable transfer taxes, if any.
(2) Please
issue a certificate or certificates representing said shares of Common Stock in the name of the undersigned or in such other name as is
specified below:
(3) The undersigned
represents that (i) the aforesaid shares of Common Stock are being acquired for the account of the undersigned for investment and
not with a view to, or for resale in connection with, the distribution thereof and that the undersigned has no present intention of distributing
or reselling such shares in violation of the Securities Act of 1933, as amended (the “Securities Act”); (ii) the
undersigned is aware of the Company’s business affairs and financial condition and has acquired sufficient information about the
Company to reach an informed and knowledgeable decision regarding its investment in the Company; (iii) the undersigned is experienced
in making investments of this type and has such knowledge and background in financial and business matters that the undersigned is capable
of evaluating the merits and risks of this investment and protecting the undersigned’s own interests; (iv) the undersigned
understands that the shares of Common Stock issuable upon exercise of this Warrant have not been registered under the Securities Act,
by reason of a specific exemption from the registration provisions of the Securities Act, which exemption depends upon, among other things,
the bona fide nature of the investment intent as expressed herein, and, because such securities have not been registered under the Securities
Act, they must be held indefinitely unless subsequently registered under the Securities Act or an exemption from such registration is
available; (v) the undersigned is aware that the aforesaid shares of Common Stock may not be sold pursuant to Rule 144 adopted under
the Securities Act unless certain conditions are met and until the undersigned has held the shares for the time period prescribed by Rule
144, that among the conditions for use of the Rule is the availability of current information to the public about the Company and that
the Company has not made such information available and has no present plans to do so; and (vi) the undersigned agrees not to make
any disposition of all or any part of the aforesaid shares of Common Stock unless and until there is then in effect a registration statement
under the Securities Act covering such proposed disposition and such disposition is made in accordance with said registration statement,
or the undersigned has furnished the Company with an opinion of counsel, reasonably satisfactory to the Company, to the effect that such
disposition is not required to be registered pursuant to the Securities Act or any applicable state securities laws; provided,
that no opinion shall be required for any disposition made or to be made in accordance with the provisions of Rule 144.
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ASSIGNMENT FORM
(To assign the foregoing
Warrant, subject to compliance with section 4.3 hereof, execute this form and supply required information. Do not use this
form to purchase shares.)
FOR VALUE RECEIVED,
the foregoing Warrant and all rights evidenced thereby are hereby assigned to
Dated: ,
20
NOTE: The signature
to this Assignment Form must correspond with the name as it appears on the face of the Warrant, without alteration or enlargement or any
change whatever. Officers of corporations and those acting in a fiduciary or other representative capacity should file proper
evidence of authority to assign the foregoing Warrant.
Exhibit 10.1
SECURITIES PURCHASE
AGREEMENT
This Securities Purchase
Agreement (this “Agreement”), dated as of January 4, 2024 (the “Effective Date”), is by and
between Gaoan Capital Management LLC, a limited liability company formed under the laws of California with its principal office at
1239 Talbryn Dr, Belmont, CA 94002 (the “Purchaser”), and Phoenix Motor Inc., a company incorporated under the
laws of the Delaware with its principal office at 1500 Lakeview Loop, Anaheim, CA 92807 (the “Company”). Each of
the Purchaser and the Company is referred to herein each as a “Party”, and collectively as the
“Parties”.
W I T N E S S E T H:
WHEREAS, the Company desires
to sell to the Purchasers, and the Purchasers desire to purchase from the Company certain securities, consisting of: (i) shares of common
stock, $0.004 par value per share (the “Common Stock”), and (ii) a warrant to purchase shares of Common Stock (the
“Warrants”), in accordance with the terms and provisions of this Agreement;
WHEREAS, the terms of the
Warrants are set forth in the form of Warrant, substantially in the form attached as Exhibit A hereto. The shares of Common Stock
issuable at Closing are referred to herein as the “Purchase Shares” and the shares of Common Stock issuable upon exercise
of the Warrants are referred to herein as the “Warrant Shares.” The Purchase Shares, the Warrants and the Warrant Shares
are sometimes collectively referred to herein as the “Securities”; and
WHEREAS, the Purchase Shares,
the Warrants and the Warrant Shares are not registered under the Securities Act of 1933, as amended (the “Securities Act”),
and are being offered and sold pursuant to an exemption from the registration requirements of Section 5 of the Securities Act contained
in Section 4(a)(2) thereof and/or Regulation D thereunder.
NOW, THEREFORE, in consideration
of the foregoing and the mutual representations, warranties, covenants and agreements herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the Company and the Purchaser
agree as follows:
ARTICLE
I
PURCHASE AND SALE
Section
1.1
Issuance, Sale and Purchase of Securities. Subject to the terms and conditions of this Agreement, and in reliance
upon the representations and warranties set forth herein, the Company agrees to issue, sell and deliver to the Purchaser, free and clear
of any pledge, mortgage, security interest, encumbrance, lien, charge, assessment, claim or restriction of any kind or nature other than
those imposed by federal and/or state securities laws, the Certificate of Incorporation and Bylaws of the Company, and the Purchaser agrees
to purchase from the Company, on the Closing Date (as defined below), 600,000 Purchase Shares and a Warrant to purchase 600,000 Warrant
Shares.
Section
1.2 Purchase
Price. The Purchaser shall pay an aggregate purchase price of US$ 678,000 (the “Purchase Price”) for the
Securities.
Section
1.3
Closing.
(a)
Upon the terms and subject to the conditions of this Agreement, the closing (the “Closing”) of the purchase
and sale of the Securities shall take place at such time and date that is mutually agreed upon by the Company and the Purchaser (the “Closing
Date”).
(b)
At or before the Closing, the Purchaser shall deliver the Purchase Price by wire transfer in immediately available funds to the
Company’s bank account designated by the Company as below:
Account
Name: Phoenix Motor Inc.
Account
No: [*********]
Bank
Name: East West Bank
Bank
Routing No: [*********]
At
the Closing, the Purchaser shall deliver a certificate of a duly authorized officer of the Purchaser certifying as to the matters set
forth in Section 1.4(b).
(c)
After the Closing and as soon as practicable the Company and deliver to the Purchaser the following items:
(i)
A share certificate (x) representing the number of Purchase Shares and (y) evidencing
the Purchaser as the holder of the Purchase Shares with the rights of a holder of Common Stock under the Certificate of Incorporation
and the Bylaws of the Company, such rights being the same as the rights of other holders of Common Stock.
(ii)
A copy of the book-entry statement evidencing the Purchaser as the holder of the Purchase Shares.
(ii) The
Warrant to purchase 600,000 Warrant Shares.
Section
1.4
Closing Conditions.
The
obligations of the Company to issue and sell the Purchase Shares as contemplated by this Agreement shall be subject to the satisfaction,
on or before the Closing, of each of the following conditions, provided that any of which may be waived in writing by the Company in its
sole discretion:
(a)
All corporate and other actions required to be taken by the Company in connection with the issuance and sale of the Purchase Shares
shall have been completed and all corporate and other actions required to be taken by the Purchaser in connection with the purchase of
the Purchase Shares shall have been completed.
(b)
The representations and warranties of the Purchaser contained in Section 2.2 of this Agreement shall have been true and
correct on the date of this Agreement and shall be true and correct in all material respects as of the Closing; and the Purchaser shall
have performed and complied with in all material respects all, and not be in breach or default in any material respect under any, agreements,
covenants, conditions and obligations contained in this Agreement that are required to be performed or complied with on or before the
Closing.
(c)
No governmental authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any law (whether
temporary, preliminary or permanent) that is in effect and restrains, enjoins, prevents, prohibits or otherwise makes illegal the consummation
of, or materially and adversely alter, the transactions contemplated by this Agreement or imposes any damages or penalties that are substantial
in relation to the Company; and no action, suit, proceeding or investigation shall have been instituted by or before any governmental
authority of competent jurisdiction or threatened that seeks to restrain, enjoin, prevent, prohibit or otherwise makes illegal the consummation
of, or materially and adversely alter, the transactions contemplated by this Agreement or impose any damages or penalties that are substantial
in relation to the Company.
ARTICLE
II
REPRESENTATIONS AND WARRANTIES
Section
2.1
Representations and Warranties of the Company. The Company hereby represents and warrants to the Purchaser, as
of the date hereof and as of the Closing, as follows:
(a)
Organization and Authority. Each of the Company and its subsidiaries is an entity duly incorporated or otherwise organized,
validly existing and in good standing under the laws of the jurisdiction of its incorporation, with the requisite power and authority
to own and use its properties and assets and to carry on its business in all material respects as is currently conducted. Neither the
Company nor any of its subsidiaries is in material violation or default of any of the provisions of its respective certificate or articles
of incorporation, bylaws or other organizational or charter documents. Each of the Company and its 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 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, except to the extent that the failure
to be so qualified and in good standing would not adversely affect the ability of the Company to carry out its obligations under, and
to consummate the transactions contemplated by, this Agreement or adversely affect the ability of the Company and its subsidiaries to
conduct the business as is currently conducted.
(b)
Due Issuance of the Securities. The Purchase Shares and the Warrants have been duly and validly authorized and, when issued
and paid for pursuant to this Agreement, the Purchase Shares will be validly issued, fully paid and non-assessable, and the Purchase Shares
and the Warrants shall be free and clear of all encumbrances, except as required by applicable laws, and issued in compliance with all
applicable federal, securities laws and the Certificate of Incorporation and the Bylaws of the Company. Upon the issuance of the Warrant
Shares, the Warrant Shares will have been duly and validly authorized and, when issued and paid for upon exercise of the Warrants, will
be validly issued, fully paid and non-assessable, and shall be free and clear of all encumbrances, except as required by applicable laws,
and issued in compliance with all applicable federal, securities laws and the Certificate of Incorporation and the Bylaws of the Company.
(c)
Authority. The Company has full power and authority to enter into, execute and deliver this Agreement and each agreement,
certificate, document and instrument to be executed and delivered by it pursuant to this Agreement and to perform its obligations hereunder.
The execution and delivery by it of this Agreement and the performance by it of its obligations hereunder have been duly authorized by
all requisite actions on its part.
(d)
Noncontravention. This Agreement has been duly executed and delivered by the Company and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, and other laws of general application affecting enforcement of creditors’ rights generally, and (ii) as limited by laws
relating to the availability of specific performance, injunctive relief, or other equitable remedies. Neither the execution and the delivery
of this Agreement, nor the consummation of the transactions contemplated hereby, will violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental entity or court to which the
Company or any of its subsidiaries is subject. To the Company’s best knowledge, neither the execution and delivery by the Company
of this Agreement, nor the consummation by the Company of any of the transactions contemplated hereby, nor compliance by the Company with
any of the terms and conditions hereof will contravene any existing agreement, federal, state, county or local law, rule or regulation
or any judgment, decree or order applicable to, or binding upon, it.
(e)
Filings, Consents and Approvals. Assuming the accuracy of the representations and warranties of the Purchaser in Section
2.2(f), neither the execution and delivery by the Company of this Agreement, nor the consummation by the Company of any of the transactions
contemplated hereby, nor the performance by the Company of this Agreement in accordance with its terms requires the filing, consent, approval,
order or authorization of, or registration with, or the giving notice to, any governmental or public body or authority, except such as
have been obtained, made, given or will be made promptly hereafter and any required filing or notification with the Securities and Exchange
Commission or Nasdaq.
(f)
No General Solicitation. Neither the Company nor any Person acting on
behalf of the Company has offered or sold any of the Securities by any form of general solicitation or general advertising. The Company
has offered the Securities for sale only to the Purchaser and certain other “accredited investors” within the meaning of Rule
501 under the Securities Act.
Section
2.2
Representations and Warranties of the Purchaser. The Purchaser hereby represents and warrants to the Company
as of the date hereof and as of the Closing Date, as follows:
(a)
Due Formation. It is a company duly incorporated as an exempted company with limited liability, validly existing and in
good standing under the laws of the jurisdiction of its incorporation, with full power and authority to own and operate and to carry on
its business in the places and in the manner as currently conducted.
(b)
Authority. It has full power and authority to enter into, execute and deliver this Agreement and each agreement, certificate,
document and instrument to be executed and delivered by it pursuant to this Agreement and to perform its obligations hereunder. The execution
and delivery by it of this Agreement and the performance by it of its obligations hereunder have been duly authorized by all requisite
actions on its part.
(c)
Valid Agreement. This Agreement has been duly executed and delivered by it and constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, and other laws of general application affecting enforcement of creditors’ rights generally, and (ii) as limited by laws
relating to the availability of specific performance, injunctive relief, or other equitable remedies.
(d)
Consents. Neither the execution and delivery by it of this Agreement nor the consummation by it of any of the transactions
contemplated hereby nor the performance by it of this Agreement in accordance with its terms requires the consent, approval, order or
authorization of, or registration with, or the giving of notice to, any governmental or public body or authority or any third party, except
as have been obtained, made or given.
(e)
No Conflict. Neither the execution and delivery by it of this Agreement, nor the consummation by it of any of the transactions
contemplated hereby, nor compliance by it with any of the terms and conditions hereof will contravene any existing agreement, federal,
state, county or local law, rule or regulation or any judgment, decree or order applicable to, or binding upon, it.
(f)
No General Solicitation. Such Purchaser
is not purchasing the Securities because of any general solicitation or general advertisement, including, without
limitation, (i) any advertisement, articles, notice or other communication published in any newspaper, magazine or similar media or broadcast
over television or radio, and (ii) any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.
(g)
Status and Investment Intent.
(i)
Experience. It has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating
the merits and risks of its investment in the Securities. It is capable of bearing the economic risks of such investment, including a
complete loss of its investment.
(ii)
Purchase Entirely for Own Account. It is acquiring the Securities for
its own account for investment purposes only and not with the view to, or with any intention of, resale, distribution or other disposition
thereof. It does not have any direct or indirect arrangement, or understanding with any other persons to distribute, or regarding the
distribution of the Securities in violation of the United States Securities Act of 1933, as amended (the “Securities Act”)
or other applicable laws.
(iii)
Investor Accredited Status. It is an “Accredited Investor”, as that term is defined in Rule 501(a) of
Regulation D of the Securities Act. Purchaser is not an entity formed for the specific purpose of acquiring the Securities, unless such
newly formed entity is an entity in which all of the equity owners are “accredited investors” (within the meaning of Rule
501(a) under the Securities Act).
(iv)
Distribution Compliance Period. Purchaser understands that the Securities are being offered in a transaction not
involving any public offering within the meaning of the Securities Act and that the Securities have not been registered under the Securities
Act or any other securities laws of the United States or any other jurisdiction. It understands that its investment in the Securities
involves a high degree of risk and that it may lose its entire investment. It can bear the economic risk of the investment for an indefinite
period of time. It acknowledges that the Securitiesmay not be sold, hypothecated or otherwise disposed of unless registered under the
Securities Act and applicable state securities laws or an exemption from registration is available. Any resale of any of the Shares may
be made only pursuant to (i) a registration statement under the Securities Act which has been declared effective by the Securities and
Exchange Commission and is effective at the time of such sale, or (ii) a specific exemption from the registration requirements of the
Securities Act. In claiming any such exemption, it will, prior to any sale or distribution of any Shares securities advise the Company,
and, if requested, provide the Company with a favorable written opinion of counsel, in form and substance satisfactory to the Company's
counsel, as to the applicability of such exemption to the proposed sale or distribution.
(v)
Restrictive Legend. It understands that the certificate evidencing the Purchase Shares, Warrants and Warrant Shares
will bear a legend or other restriction substantially to the following effect:
“THE SECURITIES HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). NO SALE, PLEDGE, HYPOTHECATION, TRANSFER OR OTHER DISPOSITION
OF THESE SECURITIES MAY BE MADE UNLESS EITHER (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (B) PURSUANT
TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EITHER CASE UPON THE RECEIPT OF AN OPINION OF U.S.
COUNSEL.”
(vi)
Direct Contact; No Broker. The contact between the Company and the Purchaser was made directly through an existing
relationship. No broker, investment banker or other person is entitled to any broker’s, finder’s or other similar fee or commission
in connection with the execution and delivery of this Agreement or the consummation of any of the transactions contemplated by this Agreement
based upon arrangements made by or on behalf of the Purchaser.
(h)
Not an Affiliate. The Purchaser is not an officer, director or “affiliate” (as that term is defined in Rule
415 of the Securities Act) of the Company.
ARTICLE
III
MISCELLANEOUS
Section
3.1
Lockup. Without the prior written consent of the Company, the Purchaser shall not sell, give, assign, hypothecate,
pledge, encumber, grant a security interest in or otherwise dispose of, or suffer to exist (whether by operation of law or otherwise)
any encumbrance on, any of the Securities, or any right, title or interest therein or thereto, prior to the date that is 180 days after
the Closing Date.
Section
3.2
Survival of the Representations and Warranties. All representations and warranties made by any Party shall survive
for two years and shall terminate and be without further force or effect on the second anniversary of the Closing Date. Notwithstanding
the foregoing, any claims asserted in good faith with reasonable specificity (to the extent known at such time) and in writing by notice
from the non-breaching Party prior to the expiration date of the applicable survival period shall not thereafter be barred by the expiration
of the relevant representations or warranty and such claims shall survive until finally resolved.
Section
3.3
Termination. This Agreement may be terminated, and the transactions contemplated hereby may be abandoned at any
time prior to Closing, (i) by mutual agreement of the Parties, (ii) by the Purchaser in the event that the Closing has not occurred by
the date that is 90 days from the date of this Agreement. Nothing in this Section 3.3 shall be deemed to release any Party from
any liability for any breach of this Agreement prior to the effective date of such termination.
Section
3.4
Governing Law. This Agreement shall be governed and interpreted in accordance with the laws of the State of New
York without giving effect to the conflicts of law principles thereof.
Section
3.5
Dispute Resolution. Any dispute, controversy or claim (each, a “Dispute”) arising out of or
relating to this Agreement, or the interpretation, performance breach, termination, validity or invalidity thereof, shall be referred
to arbitration upon the demand of any Party to the dispute with notice (the “Arbitration Notice”) to the other Party.
(a)
The Dispute shall be settled in Sacramenta, California
in a proceeding conducted in English by one (1) arbitrator from the American Arbitration Association (AAA) in accordance with the AAA
rules in force when the Arbitration Notice is submitted in accordance with the AAA rules. Each party will bear its own costs, and this
clause does not prevent seeking provisional remedies from a court. Claims must be filed within one year. This dispute resolution clause
survives the termination of the Agreement.
(b)
Each party to the arbitration shall cooperate with
each other party to the arbitration in making full disclosure of and providing complete access to all information and documents reasonably
requested by such other party in connection with such arbitral proceedings, subject only to any confidentiality obligations binding on
such party.
(c)
The award of the arbitral tribunal shall be final
and binding upon the parties thereto, and the prevailing party may apply to a court of competent jurisdiction for enforcement of such
award.
(d)
During the course of the arbitral tribunal's adjudication
of the Dispute, this Agreement shall continue to be performed except with respect to the part in dispute and under adjudication.
Section
3.6
Amendment. This Agreement shall not be amended, changed or modified, except by another agreement in writing executed
by the Parties hereto.
Section
3.7
Binding Effect. This Agreement shall inure to the benefit of, and be binding upon, each of the Parties and their
respective heirs, successors and permitted assigns.
Section
3.8
Assignment. Neither this Agreement nor any of the rights, duties or obligations hereunder may be assigned by
the Company or the Purchaser without the express written consent of the other Party. Any purported assignment in violation of the foregoing
sentence shall be null and void.
Section
3.9
Notices. All notices, requests, demands, and other communications under this Agreement shall be in writing and
shall be deemed to have been duly given on the date of actual delivery if delivered personally to the Parties to whom notice is to be
given, on the date sent if sent by telecopier, tested telex or prepaid telegram, on the next business day following delivery if sent by
courier or on the day of attempted delivery by postal service if mailed by registered or certified mail, return receipt requested, postage
paid, and properly addressed as follows:
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If to the Purchaser, at:
Gaoao Capital Management LLC
Bruce Chen
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If to the Company, at:
Xiaofeng Peng
CEO
Denton.peng@spigroups.com
1500 Lakeview Loop, Anaheim, CA
92807
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Any Party may change its address
for purposes of this Section 3.9 by giving the other Party a written notice of the new address in the manner set forth above.
Section
3.10 Entire
Agreement. This Agreement constitutes the entire understanding and agreement between the Parties hereto with respect to the matters
covered hereby, and all prior agreements and understandings, oral or in writing, if any, between the Parties with respect to the matters
covered hereby are merged and superseded by this Agreement.
Section
3.11 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.
Section
3.12 Fees
and Expenses. Except as otherwise provided in this Agreement, each Party will be responsible for all of its own expenses incurred
in connection with the negotiation, preparation and execution of this Agreement.
Section
3.13 Public
Announcements. The Purchaser shall not make, or cause to be made, any press release or public announcement in respect of this Agreement
or the transactions contemplated by this Agreement or otherwise communicate with any news media without the prior written consent of the
Company unless otherwise required by securities laws or other applicable law.
Section
3.14 Specific
Performance. The Parties agree that irreparable damage would occur in the event any provision of this Agreement is not performed in
accordance with the terms hereof. Accordingly, each Party shall be entitled to specific performance of the terms hereof, in addition to
any other remedy at law or equity.
Section
3.15 Headings.
The headings of the various articles and sections of this Agreement are inserted merely for the purpose of convenience and do not expressly
or by implication limit, define or extend the specific terms of the section so designated.
Section
3.16 Execution
in Counterparts. For the convenience of the Parties and to facilitate execution, this Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.
SIGNATURE PAGE FOLLOWS
IN WITNESS WHEREOF, the Parties
have caused this Agreement to be executed as of the day and year first above written.
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Phoenix Motor Inc. |
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By: |
/s/ Xiaofeng Peng |
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Name: Xiaofeng Peng |
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Title: Chief Executive Officer |
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Purchaser: |
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Gaoan Capital Management LLC |
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By: |
/s/ Bruce Chen |
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Name: Bruce Chen |
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Title: Managing Partner |
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xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionCommission file number. The field allows up to 17 characters. The prefix may contain 1-3 digits, the sequence number may contain 1-8 digits, the optional suffix may contain 1-4 characters, and the fields are separated with a hyphen.
| Name: |
dei_EntityFileNumber |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:fileNumberItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionTwo-character EDGAR code representing the state or country of incorporation.
| Name: |
dei_EntityIncorporationStateCountryCode |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:edgarStateCountryItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionThe exact name of the entity filing the report as specified in its charter, which is required by forms filed with the SEC. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityRegistrantName |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionThe Tax Identification Number (TIN), also known as an Employer Identification Number (EIN), is a unique 9-digit value assigned by the IRS. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityTaxIdentificationNumber |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:employerIdItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionLocal phone number for entity.
| Name: |
dei_LocalPhoneNumber |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 13e
-Subsection 4c
| Name: |
dei_PreCommencementIssuerTenderOffer |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 14d
-Subsection 2b
| Name: |
dei_PreCommencementTenderOffer |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionTitle of a 12(b) registered security. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b
| Name: |
dei_Security12bTitle |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:securityTitleItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionName of the Exchange on which a security is registered. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection d1-1
| Name: |
dei_SecurityExchangeName |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:edgarExchangeCodeItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as soliciting material pursuant to Rule 14a-12 under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Section 14a
-Number 240
-Subsection 12
| Name: |
dei_SolicitingMaterial |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionTrading symbol of an instrument as listed on an exchange.
| Name: |
dei_TradingSymbol |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:tradingSymbolItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Securities Act
-Number 230
-Section 425
| Name: |
dei_WrittenCommunications |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
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