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 OF THE
SECURITIES EXCHANGE ACT OF 1934
For
the month of October 2024
ANTELOPE
ENTERPRISE HOLDINGS LTD.
(Translation
of registrant’s name into English)
Room
1802, Block D, Zhonghai International Center,
Hi-
Tech Zone, Chengdu, Sichuan Province, PRC
(Address
of Principal Executive Office)
Indicate
by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F:
Form
20-F ☒ Form 40-F ☐
EXPLANATORY
NOTE
On
September 25, 2024, Antelope Enterprise Holdings Ltd. (the “Company” or the “Registrant”) entered into a convertible
promissory note purchase agreement (the “Purchase Agreement”) with an institutional investor to purchase $990,000 of its
convertible note (the “Note”) to purchase its class A ordinary shares in a registered direct offering. The closing of the
sale of the Note will occur on the date to be mutually agreed upon by the Company and the investor.
Copies
of the Purchase Agreement and the Note are filed as Exhibits 10.1 and 10.2, respectively. A copy of the legal opinion issued by the Company’s
British Virgin Islands counsel, Harney Westwood & Riegels LP is attached hereto as Exhibit 5.1.
The
contents of this Report on Form 6-K, including Exhibits annexed hereto, are incorporated by reference into the Registrant’s Registration
Statements on Form F-3 (Registration No. 333-260958) and shall be a part thereof from the date on which this Form 6-K is filed, to the
extent not superseded by documents or reports subsequently filed or furnished.
EXHIBIT
INDEX
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned, thereunto duly authorized.
Date:
October 9, 2024 |
ANTELOPE
ENTERPRISE HOLDINGS LTD. |
|
|
|
By: |
/s/
Hen Man Edmund |
|
|
Hen
Man Edmund |
|
|
Chief
Financial Officer |
Exhibit
5.1
|
Harney
Westwood & Riegels LP
Craigmuir
Chambers
PO
Box 71, Road Town
Tortola
VG1110, British Virgin Islands
Tel:
+1 284 494 2233
Fax:
+1 284 494 3547 |
8
October 2024
george.weston@harneys.com
+1
284 852 4333
043011.0050-GYW-NZC
To: |
Antelope Enterprise Holdings Limited |
Dear
Sir or Madam
Antelope
Enterprise Holdings Limited, BVI Company No 1542549 (the Company)
We
are informed that:
| (1) | the
Company filed a registration statement on Form F-3 (File No. 333-260958) (as amended) with
the Securities and Exchange Commission (SEC) initially on 6 July 2022 (the
Registration Statement) pursuant to the Securities Act of 1933 of the United
States of America, utilizing a shelf registration process relating to the securities described
in the prospectus supplement, which registration statement was declared effective on 15 July
2022; |
| | |
| (2) | under
this shelf registration process, the Company may, from time to time, issue up to US$75,000,000
in the aggregate of ordinary shares, preferred shares, debt securities, warrants, and units
and rights; and |
| | |
| (3) | the
Company intends to file SEC a prospectus supplement (the Supplement) in relation
to a convertible promissory note dated 25 September 2024, in the principal amount of US$
990,000.00, (the Transaction Document) between the Company and Indigo Capital
L.P. (the Purchaser) under which the Company granted the Purchaser the right
to the issue of certain Class A ordinary shares, no par value each, of the Company (Class
A Ordinary Shares and, the Class A Ordinary Shares to be issued to the Purchaser,
the Shares) in accordance with the terms thereof. |
We
are lawyers qualified to practise in the British Virgin Islands and have been asked to provide this legal opinion to you with regard
to the laws of the British Virgin Islands in connection with the Registration Statement, the Supplement, and the Transaction Document.
We
are furnishing this opinion as Exhibit 5.1 to the Registration Statement.
For
the purposes of giving this opinion, we have examined the Documents (as defined in Schedule 1). We have not examined any other documents,
official or corporate records or external or internal registers and we have not undertaken or been instructed to undertake any further
enquiry or due diligence in relation to the transaction which is the subject of this opinion.
In
giving this opinion we have relied upon the assumptions set out in Schedule 3 which we have not verified.
Based
solely upon the foregoing examinations and assumptions and having regard to legal considerations which we deem relevant, and subject
to the qualifications set out in Schedule 2, we are of the opinion that under the laws of the British Virgin Islands:
1 | Existence
and Good Standing. The Company is a company duly incorporated with limited liability
and is validly existing and in good standing under the laws of the British Virgin Islands.
The Company is a separate legal entity and is subject to suit in its own name. |
| |
2 | Capacity
and Power. The execution and delivery of the Transaction Document (as defined in Schedule
1) by the Company and the performance of its obligations thereunder, including the issue
of the Shares, is within the corporate capacity and power of the Company and has been duly
authorised and approved by all necessary corporate action of the Company. |
| |
3 | No
Conflict. The execution, performance and delivery of the Transaction Document does not
violate, conflict with or result in a breach of: |
| (a) | any
of the provisions of the Memorandum and Articles (as defined in Schedule 1); |
| | |
| (b) | any
law or regulation applicable to the Company in the British Virgin Islands currently in force;
or |
| | |
| (c) | any
existing order or decree of any governmental or regulatory authority or agency in the British
Virgin Islands. |
4 | Due
Execution. The Transaction Document has been duly executed for and on behalf of the Company
in accordance with the Resolutions (as defined in Schedule 1). |
| |
5 | Enforceability.
The Transaction Document will be treated by the courts of the British Virgin Islands
as the legally binding and valid obligations of the Company, enforceable in accordance with
its terms. |
| |
6 | Shares.
The Company is authorised to issue a maximum of 300,000,000 Class A Ordinary Shares.
Each Share will: |
| (a) | when
issued in accordance with the Registration Statement, the Supplement, the Transaction Document,
and the duly passed Resolutions; and |
| | |
| (b) | once
the name of the shareholder is entered on the register of members of the Company as the holder
of the Share, |
be
validly issued, fully paid and non-assessable (which term means when used herein that no further sums are required to be paid by the
holders thereof).
7 | Authorisation
and Approvals. No authorisations, consents, orders, permissions or approvals are required
from any governmental, regulatory or judicial authority or agency in the British Virgin Islands
and no notice to or other filing with or action by any British Virgin Islands governmental,
regulatory or judicial authority is required in connection with: |
| (a) | the
execution and delivery of the Transaction Document; |
| | |
| (b) | the
exercise of any of the Company’s rights under the Transaction Document; |
| (c) | the
performance of any of the Company’s obligations under the Transaction Document; or |
| | |
| (d) | the
payment of any amount under the Transaction Document. |
8 | Filings.
It is not necessary to ensure the legality, validity, enforceability or admissibility
in evidence of the Transaction Document that any document be filed, recorded or enrolled
with any governmental, regulatory or judicial authority in the British Virgin Islands. |
| |
9 | Judgment
Currency. Any monetary judgment in a court of the British Virgin Islands in respect of
a claim brought in connection with the Transaction Document is likely to be expressed in
the currency in which such claim is made as such courts have discretion to grant a monetary
judgment expressed otherwise than in the currency of the British Virgin Islands. |
| |
10 | Taxes.
There are no stamp duties, income taxes, withholdings, levies, registration taxes, or other
duties or similar taxes or charges now imposed, or which under the present laws of the British
Virgin Islands could in the future become imposed, in connection with the enforcement or
admissibility in evidence of the Transaction Document or on any payment to be made by the
Company or any other person pursuant to the Transaction Document. |
| |
11 | Interest.
There is no applicable usury or interest limitation law in the British Virgin Islands which
would restrict the recovery of payments or performance by the Company of its obligations
under the Transaction Document. |
| |
12 | Enforcement
of Judgments. Any final and conclusive monetary judgment for a definite sum obtained
against the Company in the courts of the State of New York in the United States of America
(New York and the Court) would be treated by the courts of the
British Virgin Islands as a cause of action in itself and sued upon as a debt at common law
so that no retrial of the issues would be necessary provided that: |
| (a) | the
Court had jurisdiction in the matter and the Company either submitted to such jurisdiction
or was resident or carrying on business within such jurisdiction and was duly served with
process; |
| | |
| (b) | the
judgment given by the Court was not in respect of penalties, fines, taxes or similar fiscal
or revenue obligations; |
| | |
| (c) | in
obtaining judgment there was no fraud on the part of the person in whose favour judgment
was given or on the part of the Court; |
| | |
| (d) | recognition
or enforcement in the British Virgin Islands would not be contrary to public policy; and |
| | |
| (e) | the
proceedings pursuant to which judgment was obtained were not contrary to the principles of
natural justice. |
13 | Adverse
Consequences. Under the laws of the British Virgin Islands, none of the parties to the
Transaction Document (other than the Company) will be deemed to be resident, domiciled or
carrying on any commercial activity in the British Virgin Islands or subject to any tax in
the British Virgin Islands by reason only of the execution and performance of the Transaction
Document, nor is it necessary for the execution, performance and enforcement of the Transaction
Document that any such party be authorised or qualified to carry on business in the British
Virgin Islands. |
14 | Choice
of Law and Jurisdiction. The choice of the law of New York as the proper law of the Transaction
Document would be upheld as a valid choice of law by the courts of the British Virgin Islands
and applied by such courts in proceedings in relation to the Transaction Document as the
proper law thereof and the submission by the Company to the jurisdiction of the Court is
valid and binding as a matter of British Virgin Islands law. |
| |
15 | Pari
Passu Obligations. The obligations of the Company under the Transaction Document
constitute direct obligations that (save as expressly subordinated thereby) rank at least
pari passu with all its other unsecured obligations (other than those preferred by
law). |
| |
16 | Exchange
Controls. There are no foreign exchange controls or foreign exchange regulations under
the currently applicable laws of the British Virgin Islands. |
| |
17 | Sovereign
Immunity. The Company is not entitled to claim immunity from suit or enforcement of a
judgment on the ground of sovereignty or otherwise in the courts of the British Virgin Islands
in respect of proceedings against it in relation to the Transaction Document and the execution
of the Transaction Document and performance of its obligations under the Transaction Document
by the Company constitute private and commercial acts. |
| |
18 | Searches. |
| (a) | No
court proceedings pending against the Company are indicated by our searches of the British
Virgin Islands High Court Registry referred to at paragraph 4 of Schedule 1. |
| | |
| (b) | On
the basis of our searches of the British Virgin Islands Registry of Corporate Affairs and
the British Virgin Islands High Court Registry referred to at paragraphs 3 and 4 of Schedule
1, no currently valid order or resolution for liquidation of the Company and no current notice
of appointment of a receiver over the Company or any of its assets appears on the records
maintained in respect of the Company at the Registry of Corporate Affairs. |
This
opinion is confined to the matters expressly opined on herein and given on the basis of the laws of the British Virgin Islands as they
are in force and applied by the British Virgin Islands courts at the date of this opinion. We have made no investigation of, and express
no opinion on, the laws of any other jurisdiction. We express no opinion as to matters of fact. 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 the Transaction
Document. We express no opinion with respect to the commercial terms of the transactions the subject of this opinion.
In
connection with the above opinion, we hereby consent to the filing of this opinion as an exhibit to the Registration Statement.
This
opinion is rendered for your benefit and the benefit of your legal counsel (in that capacity only) in connection with the transactions
contemplated by the Transaction Document. It may be disclosed to your successors and assigns only with our prior written consent. It
may not be disclosed to or relied on by any other party or for any other purpose.
Yours
faithfully |
|
|
Harney
Westwood & Riegels LP |
Schedule
1
List
of Documents and Records Examined
1 | a
copy of the Certificate of Incorporation and Memorandum and Articles of Association of the
Company (Memorandum and Articles) obtained from the Registry of Corporate Affairs
on 29 July 2024, which our searches dated 7 October 2024 indicated were not subsequently
amended; |
| |
2 | the
records and information certified by Harneys Corporate Services Limited, the registered agent
of the Company, on 4 October 2024 of the statutory documents and records maintained by the
Company at its registered office (the Registered Agent’s Certificate); |
| |
3 | the
public records of the Company on file and available for inspection at the Registry of Corporate
Affairs, Road Town, Tortola, British Virgin Islands on 7 October 2024; |
| |
4 | the
records of proceedings on file with, and available for inspection on 7 October 2024 at the
High Court of Justice, British Virgin Islands; |
| |
5 | a
certificate of good standing issued by the Registrar of Corporate Affairs with respect to
the Company dated 7 October 2024; |
| |
6 | a
directors certificate dated 8 October 2024; |
| |
7 | a
copy of the unanimous written resolutions of the board of directors of the Company dated
8 October 2024 approving the Company’s entry into, and authorising the execution and
delivery by, the Company of the Transaction Document (the Resolutions); |
(1
- 6 above are the Corporate Documents), and
| 8 | a
copy of the Transaction Document. |
The
Corporate Documents and the Transaction Document are collectively referred to in this opinion as the Documents.
Schedule
2
Assumptions
1 | Validity
under Foreign Laws. That: |
| (a) | each
party to the Transaction Document (other than the Company) has the necessary capacity, power
and authority to enter into the Transaction Document and perform its obligations thereunder,
and each such party has duly executed the Transaction Document; |
| | |
| (b) | the
Transaction Document constitutes or will constitute valid, legally binding and enforceable
obligations of each of the parties thereto under the laws of New York by which law they are
expressed to be governed; |
| | |
| (c) | all
formalities required under the laws of New York and any other applicable laws (other than
the laws of the British Virgin Islands) have been complied with; and |
| | |
| (d) | no
other matters arising under any foreign law will affect the views expressed in this opinion. |
2 | Choice
of Laws. The choice of the laws of New York selected to govern the Transaction Document
has been made in good faith and will be regarded as a valid and binding selection which will
be upheld in the courts of that jurisdiction and all other relevant jurisdictions (other
than the British Virgin Islands) and the entry into and performance of the Transaction Document
will not cause any of the parties thereto to be in breach of any agreement or undertaking. |
| |
3 | Directors.
The board of directors of the Company considers the execution of the Transaction Document
and the transactions contemplated thereby to be in the best interests of the Company and
no director has a financial interest in or other relationship to a party or the transactions
contemplated by the Transaction Documents which has not been properly disclosed in the Resolutions. |
| |
4 | Bona
Fide Transaction. No disposition of property effected by the Transaction Document
is made for an improper purpose or wilfully to defeat an obligation owed to a creditor. Each
director has exercised proper care, diligence and skill in relation to the Transaction Document. |
| |
5 | Solvency.
The Company was on the date of execution of the Transaction Document able to pay its
debts as they fall due, and entering into the Transaction Document will not cause the Company
to become unable to pay its debts as they fall due. |
| |
6 | Authenticity
of Documents. All original Documents are authentic, all signatures, initials and seals
are genuine, all copies of Documents are true and correct copies and the Transaction Document
conforms in every material respect to the latest drafts of the same produced to us and, where
the Transaction Document has been provided to us in successive drafts marked-up to indicate
changes to such documents, all such changes have been so indicated. |
| |
7 | Corporate
Documents. All matters required by law to be recorded in the Corporate Documents are
so recorded, and all corporate minutes, resolutions, certificates, documents and records
which we have reviewed are accurate and complete, and all facts expressed in or implied thereby
are accurate and complete, and the information recorded in the Registered Agent’s Certificate
was accurate as at the date of the passing of the Resolutions. |
| |
8 | Stamp
Duty. The Company does not own (directly or indirectly) an interest in land in the British
Virgin Islands. |
| |
9 | No
Steps to Wind-up. The directors and shareholders of the Company have not taken any steps
to appoint a liquidator of the Company and no receiver has been appointed over any of the
property or assets of the Company. |
| |
10 | Resolutions.
The Resolutions remain in full force and effect. |
| |
11 | Unseen
Documents. Save for the Documents provided to us there are no resolutions, agreements,
documents or arrangements which materially affect, amend or vary the transactions envisaged
in the Documents. |
| |
12 | Proceeds
of Crime. No payment or transfer of property to or for the account of any party under
the Transaction Document represent or will represent money laundering, terrorist financing
or proliferation financing as defined under the Anti-Money Laundering Regulations 2008. |
Schedule
3
Qualifications
1 | Enforceability.
The term enforceable as used above means that the obligations assumed by the
Company under the relevant instrument are of a type which the courts of the British Virgin
Islands enforce. It does not mean that those obligations will necessarily be enforced in
all circumstances in accordance with their terms. In particular: |
| (a) | Insolvency.
Rights and obligations may be limited by bankruptcy, insolvency, liquidation, winding-up,
reorganisation, moratorium, readjustment of debts, arrangements and other similar laws of
general application affecting the rights of creditors. |
| | |
| (b) | Limitation
Periods. Claims under the Transaction Document may become barred under the Limitation
Act 1961 relating to the limitation of actions in the British Virgin Islands or may be or
become subject to defences of set-off, estoppel or counterclaim. |
| | |
| (c) | Equitable
Rights and Remedies. Equitable rights may be defeated by a bona fide purchaser
for value without notice. Equitable remedies such as injunctions and orders for specific
performance are discretionary and will not normally be available where damages are considered
an adequate remedy. |
| | |
| (d) | Fair
Dealing. Strict legal rights may be qualified by doctrines of good faith and fair dealing
- for example a certificate or calculation as to any matter might be held by a British Virgin
Islands court not to be conclusive if it could be shown to have an unreasonable or arbitrary
basis, or in the event of manifest error. |
| | |
| (e) | Prevention
of Enforcement. Enforcement may be prevented by reason of fraud, coercion, duress, undue
influence, unreasonable restraint of trade, misrepresentation, public policy or mistake or
limited by the doctrine of frustration of contracts. |
| | |
| (f) | Penal
Provisions. Provisions, for example, for the payment of additional interest in certain
circumstances, may be unenforceable to the extent a court of the British Virgin Islands determines
such provisions to be penal. |
| | |
| (g) | Currency.
A British Virgin Islands court retains a discretion to denominate any judgment in US
dollars. |
| | |
| (h) | Confidentiality.
Provisions imposing confidentiality obligations may be overridden by the requirements of
legal process. |
| | |
| (i) | Award
of Costs. In principle the courts of the British Virgin Islands will award costs and
disbursements in litigation in accordance with the relevant contractual provisions but there
remains some uncertainty as to the way in which the rules of the High Court will be applied
in practice. |
| | |
| (j) | Inappropriate
Forum. The courts of the British Virgin Islands may decline to exercise jurisdiction
in relation to substantive proceedings brought under or in relation to the Transaction Document
in matters where they determine that: |
| (i) | such
proceedings may be tried in a more appropriate forum; and |
| (ii) | proceedings
are already underway in a different forum; or |
| | |
| (iii) | the
issues have already been finally determined by another forum. |
| (k) | Financial
Services Business. An agreement made by a person in the course of carrying on unlicensed
financial services business is unenforceable against the other party to the agreement under
section 50F of the Financial Services Commission Act 2001. |
2 | Public
Records. Records reviewed by us may not be complete for various reasons. In particular
you should note that: |
| (a) | in
special circumstances the court may order the sealing of the court record, which would mean
that a record of the court action would not appear on the High Court register; |
| | |
| (b) | failure
to file notice of appointment of a receiver with the Registry of Corporate Affairs does not
invalidate the receivership but merely gives rise to penalties on the part of the receiver; |
| | |
| (c) | a
liquidator of a British Virgin Islands company has 14 days after their appointment within
which they must file notice of their appointment at the Registry of Corporate Affairs; and |
| | |
| (d) | although
amendments to the memorandum and articles of association of a company are normally effective
from the date of registration with the Registry of Corporate Affairs, it is possible for
a British Virgin Islands court to order that they be treated as being effective from an earlier
date, and searches would not reveal the amendments until the court order was subsequently
filed, |
and
accordingly our searches would not indicate such issues.
3 | Severability.
The courts in the British Virgin Islands will determine in their discretion whether or
not an illegal or unenforceable provision may be severed. |
| |
4 | Several
Remedies. In certain circumstances provisions in the Transaction Document that: |
| (a) | the
election of a particular remedy does not preclude recourse to one or more others; or |
| | |
| (b) | delay
or failure to exercise a right or remedy will not operate as a waiver of any such right or
remedy, |
may
not be enforceable.
5 | Exculpation
and Indemnity Provisions. The effectiveness of terms in the Transaction Document excusing
any party from a liability or duty otherwise owed or indemnifying that party from the consequences
of incurring such liability or breaching such duty are limited by law. |
| |
6 | Foreign
Statutes. We express no opinion in relation to provisions making reference to foreign
statutes in the Transaction Document. |
| |
7 | Amendment.
A British Virgin Islands court would not treat as definitive a statement in a contract
that it could only be amended or waived in writing but would be able to consider all the
facts of the case particularly where consideration had passed to determine whether a verbal
amendment or waiver had been effected and if it found that it had such verbal amendment or
waiver would be deemed to have also amended the stated requirement for a written agreement. |
| |
8 | Good
Standing. To maintain the Company in good standing under the laws of the British Virgin
Islands, annual licence fees must be paid to the Registrar of Corporate Affairs. |
| |
9 | Conflict
of Laws. An expression of an opinion on a matter of British Virgin Islands law in relation
to a particular issue in this opinion should not necessarily be construed to imply that the
British Virgin Islands courts would treat British Virgin Islands law as the proper law to
determine that issue under its conflict of laws rules. |
| |
10 | Sanctions.
The obligations of the Company may be subject to restrictions pursuant to United Nations
and United Kingdom sanctions as implemented under the laws of the British Virgin Islands. |
| |
11 | Economic
Substance. We have undertaken no enquiry and express no view as to the compliance of
the Company with the Economic Substance (Companies and Limited Partnerships) Act 2018. |
| |
12 | Shares.
A Share is deemed to be issued when the name of the Shareholder is entered into the register
of members of the Company. |
Exhibit
10.1
ANTELOPE
ENTERPRISE HOLDINGS LIMITED
CONVERTIBLE
PROMISSORY NOTE PURCHASE AGREEMENT
This
Convertible Promissory Note and Warrant Purchase Agreement (this “Agreement”) is made as of September 25, 2024, by
and between ANTELOPE ENTERPRISE HOLDINGS LIMITED, a company organized under the laws of British Virgin Islands (the “Company”),
and Indigo Capital LP, a limited partnership organized under the laws of the Cayman Islands (the “Purchaser”).
RECITALS
The
Company desires to issue and sell, and the Purchaser desires to purchase, a convertible promissory note in substantially the form attached
to this Agreement as Exhibit A (the “Note”) which shall be convertible on the terms stated therein into newly-issued
Class A ordinary shares, no par value each, of the Company (“Ordinary Shares”) registered by the Company under its
registration statement on Form F-3 filed with the United States Securities and Exchange Commission and declared effective on July 15,
2022 under File Number 333-260958 which was originally Filed on July 6, 2022 (the “Registered Ordinary Shares”). Capitalized
terms not otherwise defined herein have the meaning given them in the Note.
AGREEMENT
The
parties hereby agree as follows:
1. | Purchase
and Sale of the Note. |
(a)
Sale and Issuance of the Note. Subject to the terms and conditions of this Agreement, the Purchaser agrees to purchase at the
Closing (as defined below) and the Company agrees to sell and issue to the Purchaser:
(i)
the Note in the principal amount of US$990,000, against which the Purchaser shall make advances of monies to the Company (“Advances”),
and which shall be convertible to Registered Ordinary Shares, all according to the terms of the Note.
(b)
Purchase. The aggregate purchase price of the Note shall be equal to 100% of the principal amount of the Note, as paid through
the Advances.
(c)
Closing.
(i)
Subject to the satisfaction (or written waiver) of the conditions set forth in Section 5 and Section 6 below, on the Closing Date,
the Company shall deliver to the Purchaser the Note each duly executed by the Company and the Purchaser shall deliver or cause to be
delivered to the Company, via wire transfer, immediately available funds equal to the Purchase Price of the Note, less the
Transaction Costs as set forth in Section 1(d) below. The purchase and sale of the Note shall take place remotely by the electronic
exchange among the parties and their counsel of all documents and deliverables required under this Agreement at 10:00 a.m., on
September [ ], 2024, or in such other manner or at such other time and place as the Company and the Purchasers mutually agree upon,
orally or in writing (which time and place are designated as the “Closing”, such date, the “Closing
Date”).
(d)
Transaction Costs. Purchaser shall deduct from the Advances the following fees, costs and expenses (collectively, “Transaction
Costs”):
(i)
An original issue discount equal to 10% of the amount of the Purchase Price; and
(ii)
All legal costs, if any, incurred by the Purchaser not exceeding $20,000.
2. | Representations
and Warranties of the Company. The Company hereby represents and warrants to the Purchaser
that: |
(a)
Organization, Good Standing and Qualification. The Company is a corporation duly organized, validly existing and in good standing
under the laws of British Virgin Islands and has all requisite corporate power and authority to carry on its business as now conducted
and as proposed to be conducted. The Company is duly qualified to transact business and is in good standing in each jurisdiction in which
the failure to so qualify would have a material adverse effect on its business or properties.
(b)
Authorization. This Agreement, the Note, and Registered Ordinary Shares issuable upon conversion of the Note, have been duly authorized
by the Company. This Agreement and the Note, when executed and delivered by the Company, shall constitute valid and legally binding obligations
of the Company, enforceable against the Company in accordance with their respective terms except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance, and other laws of general application affecting enforcement of creditors’
rights generally, and as limited bylaws relating to the availability of specific performance, injunctive relief, or other equitable remedies.
(c)
Registered Ordinary Shares. The Note and Registered Ordinary Shares upon issuance shall be duly registered under the Company’s
registration statement on Form F-3 filed with the United States Securities and Exchange Commission and declared effective on July 15,
2022, under SEC File Number 333-260958 which was originally filed on July 6, 2022.
3. | Representations
and Warranties of the Purchasers. The Purchaser hereby represents and warrants to the
Company that: |
(a)
Authorization. The Purchaser has full power and authority to enter into this Agreement. This Agreement, when executed and delivered
by the Purchaser, will constitute a valid and legally binding obligation of the Purchaser, enforceable in accordance with its terms,
except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and any other laws of general
application affecting enforcement of creditors’ rights generally, and as limited by laws relating to the availability of a specific
performance, injunctive relief, or other equitable remedies.
(b)
Purchase Entirely for Own Account. This Agreement is made with the Purchaser in reliance upon the Purchaser’s representation
to the Company, which by the Purchaser’s execution of this Agreement, the Purchaser hereby confirms, that the Note to be acquired
by the Purchaser will be acquired for investment for the Purchaser’s own account, not as a nominee or agent, and not with a view
to the resale or distribution of any part thereof, and that the Purchaser has no present intention of selling, granting any participation
in, or otherwise distributing the same. By executing this Agreement, the Purchaser further represents that the Purchaser does not presently
have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or
to any third person, with respect to the Note. The Purchaser either has not been formed for the specific purpose of acquiring the Note,
or each beneficial owner of equity securities of or equity interests in the Purchaser is an accredited investor as defined in Rule 501(a)
of Regulation D promulgated under the Securities Act.
(c)
Knowledge; Financial Statements. The Purchaser 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 to acquire the Note. In particular,
the Purchaser acknowledges that such Purchaser has reviewed the Company’s publicly filed information with the SEC and has made
due inquiry of the Company and received satisfactory responses thereto.
(e)
No Public Market. The Purchaser understands that no public market now exists for the Note, and that the Company has made no assurances
that a public market will ever exist for the Note.
(g)
Accredited Investor. The Purchaser is an accredited investor as defined in Rule 501(a) of Regulation D promulgated under the Securities
Act.
(h)
Foreign Investors. If a Purchaser is not a United States person (as defined by Rule 902(k) under the Securities Act), such Purchaser
hereby represents that it has satisfied itself as to the full observance of the laws of its jurisdiction in connection with any invitation
to purchase the Note or any use of this Agreement, including (i) the legal requirements within its jurisdiction for the purchase of the
Note, (ii) any foreign exchange restrictions applicable to such purchase, (iii) any governmental or other consents that may need to be
obtained and (iv) the income tax and other tax consequences, if any, that maybe relevant to the purchase, holding, redemption, sale or
transfer of the Note. Such Purchaser’s subscription and payment for, and his or her continued beneficial ownership of the Note,
will not violate any applicable securities or other laws of the Purchaser’s jurisdiction. Such Purchaser also hereby represents
that such Purchaser is not a “10-percent shareholder” as defined in Section 871(h) of the Internal Revenue Code of 1986,
as amended.
(i)
Foreign Investment Regulations. The Purchaser represents that any consideration to be paid for Note pursuant to this Agreement
does not derive from activity that is or was contrary to law or from a person or location that is or was the subject of a United States
embargo or other economic sanction and that no consideration to be paid for Note and Warrant in accordance with this Agreement will provide
the basis for liability for any person under United States anti-money laundering laws or economic sanctions laws. The Purchaser represents
that neither such Purchaser nor any of its nominees or affiliates is on the specially designated OFAC list or similar European Union
watchlist.
4. | Conditions
of the Purchasers’ Obligations at Closing. The obligations of the Purchaser to
the company under this Agreement are subject to the fulfillment, on or before the Closing,
of each of the following conditions, unless otherwise waived: |
(a)
Representations and Warranties. The representations and warranties of the Company contained in Section 2 shall be true on and
as of the Closing with the same effect as though such representations and warranties had been made on and as of the date of the Closing.
(b)
Qualifications. All authorizations, approvals or permits, if any, of any governmental authority or regulatory body of the United
States or of any state that are required in connection with the lawful issuance and sale of the Note and Warrant pursuant to this Agreement
shall be obtained and effective as of the Closing.
(c)
Registration Statement. The Company shall have filed a prospectus supplement to its registration statement on form F-3 (No. 333-260958)
for the issuance of Conversion Shares to Investor under the Note.
5. | Conditions
of the Company’s Obligations at Closing. The obligations of the Company to the
Purchaser under this Agreement are subject to the fulfillment, on or before the Closing,
of each of the following conditions, unless otherwise waived: |
(a)
Representations and Warranties. The representations and warranties of the Purchaser contained in Section 3 shall be true on and
as of the Closing with the same effect as though such representations and warranties had been made on and as of the Closing.
(b)
Qualifications. All authorizations, approvals or permits, if any, of any governmental authority or regulatory body of the United
States or of any state that are required in connection with the lawful issuance and sale of the Note and Warrant pursuant to this Agreement
shall be obtained and effective as of the Closing.
(c)
Delivery of Form W-8 BEN or Form W-9. The Purchaser shall have completed and delivered to the Company a validly executed IRS Form
W-8 BEN or IRS Form W-9, as applicable, establishing such Purchaser’s exemption from withholding tax.
6. | Finder’s
Fee. Each party represents that it neither is nor will be obligated for any finder’s
fee or commission in connection with this transaction except as maybe paid solely out of
the Transaction Costs. The Purchaser agrees to indemnify and to hold harmless the Company
from any liability for any commission or compensation in the nature of a finder’s fee
(and the costs and expenses of defending against such liability or asserted liability) for
which such Purchaser or any of its officers, employees, or representatives is responsible.
The Company agrees to indemnify and hold harmless the Purchaser from any liability for any
commission or compensation in the nature of a finder’s fee (and the costs and expenses
of defending against such liability or asserted liability) for which the Company or any of
its officers, employees or representatives is responsible. |
7. | Exculpation
Among Purchasers. The Purchaser acknowledges that it is not relying upon any person,
firm or corporation, other than the Company and its officers and directors, in making its
investment or decision to invest in the Company. The Purchaser agrees that none of the other
Purchasers nor the respective controlling persons, officers, directors, partners, agents,
or employees of such other Purchaser shall be liable for any action heretofore or hereafter
taken or omitted to be taken by any of them in connection with the Note and Warrant. |
(a)
Governing Law. The validity, interpretation, construction and performance of this Agreement, and all acts and transactions pursuant
hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws
of the State of New York, without giving effect to principles of choice or conflicts of law.
(b)
Entire Agreement. This Agreement, and the documents referred to herein constitute the entire agreement between the parties hereto
pertaining to the subject matter hereof, and any and all other written or oral agreements existing between the parties hereto are expressly
canceled.
(c)
Amendments and Waivers. Any term of this Agreement maybe amended or waived only with the written consent of the Company and Purchaser.
(d)
Successors and Assigns. Except as otherwise provided in this Agreement, this Agreement, and the rights and obligations of the
parties hereunder, will be binding upon and inure to the benefit of their respective successors, assigns, heirs, executors, administrators
and legal representatives.
(e)
Notices. Any notice, demand or request required or permitted to be given under this Agreement shall be in writing and shall be
deemed sufficient when delivered personally or by overnight courier or sent by email, or 48 hours after being deposited in the U.S. mail
as certified or registered mail with postage prepaid, addressed to the party to be notified at such party’s address as set forth
on the signature page, as subsequently modified by written notice, or if no address is specified on the signature page, at the most recent
address set forth in the Company’s books and records.
(f)
Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree
to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement
for such provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance of the Agreement shall be interpreted
as if such provision were so excluded and (iii) the balance of the Agreement shall be enforceable in accordance with its terms.
(g)
Construction. This Agreement is the result of negotiations between and has been reviewed by each of the parties hereto and their
respective counsel, if any; accordingly, this Agreement shall be deemed to be the product of all of the parties hereto, and no ambiguity
shall be construed in favor of or against any one of the parties hereto.
(h)
Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall
be deemed an original, and all of which together shall constitute one and the same agreement. Execution of a facsimile or scanned copy
or by electronic signature duly verified (such as through DocuSign® or an equivalent facility) will have the same force and effect
as execution of an original.
IN
WITNESS WHEREOF, the Company has caused this Convertible Promissory Note Purchase Agreement to be executed by its officer thereunto
duly authorized as of the date first above indicated.
Antelope Enterprise Holdings Limited |
|
|
|
|
By: |
/s/
Weilai Zhang |
|
Name:
|
Weilai
Zhang |
|
Title:
|
Chief
Executive Officer |
|
AGREED TO AND ACCEPTED: |
|
|
|
|
Indigo Capital LP |
|
|
|
|
By:
|
/s/
George Sandhu |
|
Name:
|
George
Sandhu |
|
Title:
|
Director |
|
CONVERTIBLE
PROMISSORY NOTE
US$ 990,000.00 |
[September [ ]], 2024 |
New
York, NY
For
value received, ANTELOPE ENTERPRISE HOLDINGS LIMITED, a corporation formed and existing under the laws of British Virgin Islands (the
“Company”), promises to pay to INDIGO CAPITAL LP, a limited partnership organized under the laws of the Cayman Islands,
or its permitted assigns (the “Holder”), the principal sum of NINE HUNDRED NINETY THOUSAND US DOLLARS (US$990,000.00).
1. Basic Terms.
| (a) | Maturity.
While this Note is outstanding, principal and any accrued but unpaid interest under this
Note shall be due and payable upon demand of the Holder at any time after March 25, 2025
(the “Maturity Date”). Subject to Section 2 below, interest shall accrue
on this Note and shall be due and payable with each installment of principal. Notwithstanding
the foregoing, the entire unpaid principal sum of this Note, together with accrued and unpaid
interest thereon, shall become immediately due and payable upon the commission of any act
of bankruptcy by the Company, the execution by the Company of a general assignment for the
benefit of creditors, the filing by or against the Company of a petition in bankruptcy or
any petition for relief under the federal bankruptcy actor the continuation of such petition
without dismissal for a period of 90 days or more, or the appointment of a receiver or trustee
to take possession of the property or assets of the Company. |
| (b) | Purchase
Agreement. This Note is the Convertible Promissory Note issued pursuant to that certain
Convertible Promissory Note Purchase Agreement dated September 25, 2024 (the “Purchase
Agreement”). Capitalized terms not otherwise defined herein have the meaning given
them in the Purchase Agreement. |
| (c) | Advances.
Within one Business Day after the date hereof, the Holder shall make payment upon this Note
in the amount of NINE HUNDRED NINETY THOUSAND US DOLLARS (US$990,000.00) (the “Payment”),
less applicable Transaction Costs as described in the Purchase Agreement. |
| (d) | Payment;
No Prepayments. All payments shall be made in lawful money of the United States of America
at such place as the Holder hereof may from time to time designate in writing to the Company.
Payment shall be credited first to the accrued interest then due and payable and the remainder
shall be applied to principal. The Company may not make payments on this Note prior to the
Maturity Date. |
2. Conversion.
| (a) | Definitions.
As used in this Note, the following terms have the following meanings: |
| (1) | “Business
Day” means any day on which banks are generally open for business in New York,
New York, USA. |
| (2) | “Conversion
Ordinary Shares” means the Class A ordinary shares, no par value each, of the Company
(the “Ordinary Shares”) registered by the Company under its registration
statement on Form F-3 filed with the United States Securities and Exchange Commission and
declared effective on July 15, 2022, under File Number 333-260958 which was originally Filed
on July 6, 2022. |
| (3) | “Conversion
Amount” means the amount of the Note that will be converted into Conversion Ordinary
Shares. The aggregate Conversion Amount is $990,000. |
EXHIBIT A - CONVERTIBLE
PROMISSORY NOTE
| (4) | “Conversion
Price” means the closing price of the Company’s Ordinary Shares, as reported
on https://www.nasdaq.com/market-activity/stocks/aehl, on the Trading Day immediately preceding
the date hereof multiplied by the Discount Rate. |
| (5) | “Discount
Rate” means 80.00%. |
| (6) | “Trading
Day” means any day and the time span of such day during which principal stock exchange
in which the Ordinary Shares are traded is open, excluding electronic or extended trading
hours. |
| (b) | Terms
of Conversion. Upon the election of the Holder, or upon the occurrence of an event of
automatic conversion, the Company will issue to the Holder a number of Conversion Ordinary
Shares equal to the Conversion Amount divided by the Conversion Price. |
| (c) | Elective
Conversion Rights. At any time, Holder may elect to convert the outstanding principal
of the Payment into Conversion Ordinary Shares of the Company in accordance with the terms
hereof. |
| (d) | Automatic
Conversion Rights. |
(i)
Change of Control. In the event of a Change of Control (as defined below) prior to repayment or conversion in full of this Note, the
outstanding principal of this Note shall become immediately become the Conversion Amount and will convert into Conversion Ordinary
Shares as if the Holder had made an election to convert immediately prior to such Change in Control. The term “Change of
Control” means (i) a sale of all or substantially all of the Company’s assets other than to an Excluded Entity (as
defined below), (ii) a merger, consolidation or other capital reorganization or business combination transaction of the Company with
or into another corporation, limited liability company or other entity other than an Excluded Entity, or (iii) the consummation of a
transaction, or series of related transactions, in which any “person” (as such term is used in Sections 13(d) and 14(d)
of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) becomes the “beneficial
owner” (as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of all of the Company’s then outstanding
voting securities. Notwithstanding the foregoing, a transaction shall not constitute a Change of Control if its purpose is to (A)
change the jurisdiction of the Company’s incorporation, (B) create a holding company that will be owned in substantially the
same proportions by the persons who hold the Company’s securities immediately before such transaction, or (C) obtain funding
for the Company in a financing that is approved by the Company’s Board of Directors. An “Excluded Entity” means a
corporation or other entity of which the holders of voting capital stock of the Company outstanding immediately prior to such
transaction are the direct or indirect holders of voting securities representing at least a majority of the votes entitled to be
cast by all of such corporation’s or other entity’s voting securities outstanding immediately after such
transaction.
(ii)
Upon Maturity. Upon the Maturity Date, the aggregate Conversion Amount still outstanding shall convert automatically in accordance
with the terms hereof without the Holder needing to make an election but Ordinary Shares as if the Holder had made an election to
convert immediately prior to the Maturity Date.
3. Mechanics and Effect of Conversion.
| (a) | In
General. Upon the full conversion of this Note, the Holder shall surrender this Note,
duly endorsed, to the Company or any transfer agent of the Company and shall deliver to the
Company any other documentation reasonably required by the Company in connection with such
conversion (including, in the event of a conversion of this Note into Conversion Ordinary
Shares, any applicable transaction documents). Except as set forth in the last sentence of
this Section 3(a) with respect to partial conversions, the Company shall not be required
to issue Conversion Ordinary Shares or other property into which this Note may convert until
the Holder has surrendered this Note to the Company and delivered to the Company such documentation.
Upon conversion of this Note or any portion thereof, the Company will be forever released
from all of its obligations and liabilities under this Note with regard to that portion of
the principal amount and accrued interest being converted including without limitation the
obligation to pay such portion of the principal amount and accrued interest. Notwithstanding
the foregoing, upon any conversion of apart but less than the whole of this Note, the Holder
need not surrender this Note, but shall deliver in lieu of this Note a duly executed instrument
of satisfaction of this Note to the extent of the portion of this Note then being converted,
and for the purposes of this Section 3(a) the delivery of such instrument of satisfaction
shall be deemed a surrender of this Note to the extent of amount stated is such instrument. |
EXHIBIT A - CONVERTIBLE
PROMISSORY NOTE
| (b) | Delivery
of Conversion Ordinary Shares upon Conversion. Conversion Ordinary Shares hereunder shall
be transmitted by the transfer agent of the Company’s Ordinary Shares (the “Transfer
Agent”) to the Holder by crediting the account of the Holder’s or its designee’s
balance account with The Depository Trust Company through its Deposit or Withdrawal at Custodian
system (“DWAC”) if the Company is then a participant in such system and
there is an effective registration statement permitting the issuance of the Conversion Ordinary
Shares to or resale of the Conversion Ordinary Shares by the Holder by the date that is two
(2) Trading Days after the delivery to the Company of the Holder’s election to convert
(such date, the “Conversion Ordinary Shares Delivery Date”). Upon delivery
of the Holder’s election to convert, the Holder shall be deemed for all corporate purposes
to have become the holder of record of the Conversion Ordinary Shares with respect to which
this Note has been converted, irrespective of the date of delivery of the Conversion Ordinary
Shares. If the Transfer Agent fails for any reason to deliver to the Holder the Conversion
Ordinary Shares subject to an election by the Conversion Ordinary Shares Delivery Date, the
Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for
each $1,000 of Conversion Ordinary Shares subject to such exercise (based on the VWAP of
the Ordinary Shares on the date of the applicable Notice of Exercise), $10 per Trading Day
for each Trading Day after such Conversion Ordinary Shares Delivery Date until such Conversion
Ordinary Shares are delivered or Holder rescinds such exercise. |
| (c) | Compensation
for Buy-In on Failure to Timely Deliver Conversion Ordinary Shares Upon Exercise. In
addition to any other rights available to the Holder, if the Company fails to cause the Transfer
Agent to transmit to the Holder the Conversion Ordinary Shares in accordance with the provisions
of Section 3(b) above on or before the Conversion Ordinary Shares Delivery Date, and if after
such date the Holder is required by its broker to purchase (in an open market transaction
or otherwise) or the Holder’s brokerage firm otherwise purchases, Ordinary Shares to
deliver in satisfaction of a sale by the Holder of the Conversion Ordinary Shares which the
Holder anticipated receiving upon such exercise (a “Buy-In”), then the
Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the Holder’s
total purchase price (including brokerage commissions, if any) for the Ordinary Shares so
purchased exceeds (y) the amount obtained by multiplying (1) the number of Conversion Ordinary
Shares that the Company was required to deliver to the Holder in connection with the exercise
at issue times (2) the price at which the sell order giving rise to such purchase obligation
was executed, and (B) at the option of the Holder, either reinstate the portion of the Warrant
and equivalent number of Conversion Ordinary Shares for which such exercise was not honored
(in which case such exercise shall be deemed rescinded) or deliver to the Holder the number
of Ordinary Shares that would have been issued had the Company timely complied with its exercise
and delivery obligations hereunder. For example, if the Holder purchases Ordinary Shares
having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise
of Warrants with an aggregate sale price giving rise to such purchase obligation of $10,000,
under clause (A) of the immediately preceding sentence the Company shall be required to pay
the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts
payable to the Holder in respect of the Buy-In and, upon request of the Company, evidence
of the amount of such loss. Nothing herein shall limit a Holder’s right to pursue any
other remedies available to thereunder, at law or inequity including, without limitation,
a decree of specific performance and/or injunctive relief with respect to the Company’s
failure to timely deliver Ordinary Shares upon exercise of the Warrant as required pursuant
to the terms hereof. |
EXHIBIT A - CONVERTIBLE
PROMISSORY NOTE
| (d) | No
Fractional Ordinary Shares or Scrip. No fractional Ordinary Shares or scrip representing
fractional Ordinary Shares shall be issued upon the conversion of this Note. As to any fraction
of an Ordinary Shares which the Holder would otherwise be entitled to purchase upon such
exercise, the Company shall, at its election, either pay a cash adjustment in respect of
such final fraction in an amount equal to such fraction multiplied by the Conversion Price
or round up to the next whole Ordinary Shares. |
4. Certain Adjustments.
| (a) | Share
Dividends and Splits. If the Company, at any time while this Note is outstanding and
not wholly converted: (i) pays a share dividend or otherwise makes a distribution or distributions
on its Ordinary Shares or any other equity or equity equivalent securities payable in Ordinary
Shares (which, for avoidance of doubt, shall not include any Ordinary Shares underlying Conversion
Ordinary Shares issued by the Company upon conversion of this Note), (ii) subdivides outstanding
Ordinary Shares into a larger number of Ordinary Shares, (iii) combines (including by way
of reverse share split) outstanding Ordinary Shares into a smaller number of shares, or (iv)
issues by reclassification any shares of capital stock of the Company, then in each case
the Conversion Price shall be multiplied by a fraction of which the numerator shall be the
number of Ordinary Shares (excluding treasury shares, if any) outstanding immediately before
such event and of which the denominator shall be the number of Ordinary Shares outstanding
immediately after such event, and the number of Conversion Ordinary Shares issuable upon
con the aggregate Conversion Price of this Note remains unchanged. Any adjustment made pursuant
to this Section 4(a) shall become effective immediately after the record date for the determination
of shareholders entitled to receive such dividend or distribution and shall become effective
immediately after the effective date in the case of a subdivision, combination or reclassification. |
| (b) | Subsequent
Rights Offerings. In addition to any adjustments pursuant to Section 4(a) above, if at
any time the Company grants, issues or sells any Ordinary Shares or equivalent equity or
rights to purchase shares, Note, securities or other property pro rata to the record
holders of Ordinary Shares (the “Purchase Rights”), then the Holder will
be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate
Purchase Rights which the Holder could have acquired if the Holder had held the number of
Ordinary Shares acquirable upon complete conversion of this Note (without regard to any limitations
on exercise hereof, including without limitation, the Beneficial Ownership Limitation) and
the exchange of Conversion Ordinary Shares into Ordinary Shares immediately before the date
on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if
no such record is taken, the date as of which the record holders of Ordinary Shares are to
be determined for the grant, issue or sale of such Purchase Rights (provided, however,
that, to the extent that the Holder’s right to participate in any such Purchase Right
would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder
shall not be entitled to participate in such Purchase Right to such extent (or beneficial
ownership of such Ordinary Shares as a result of such Purchase Right to such extent) and
such Purchase Right to such extent shall be held in abeyance for the Holder until such time,
if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership
Limitation). |
| (c) | Pro
Rata Distributions. During such time as this Note is outstanding and not wholly converted,
if the Company shall declare or make any dividend or other distribution of its assets (or
rights to acquire its assets) to holders of Ordinary Shares, by way of return of capital
or otherwise (including, without limitation, any distribution of cash, shares or other securities,
property or options by way of a dividend, spin off, reclassification, corporate rearrangement,
scheme of arrangement or other similar transaction) (a “Distribution”),
at any time after the issuance of this Note, then, in each such case, the Holder shall be
entitled to participate in such Distribution to the same extent that the Holder would have
participated therein if the Holder had held the number of shares of Ordinary Shares acquirable
upon complete conversion of this Note (without regard to any limitations on exercise hereof,
including without limitation, the Beneficial Ownership Limitation) and the exchange of Conversion
Ordinary Shares for Ordinary Shares immediately before the date of which a record is taken
for such Distribution, or, if no such record is taken, the date as of which the record holders
of Ordinary Shares are to be determined for the participation in such Distribution (provided,
however, that, to the extent that the Holder’s right to participate in any such
Distribution would result in the Holder exceeding the Beneficial Ownership Limitation, then
the Holder shall not be entitled to participate in such Distribution to such extent (or in
the beneficial ownership of any Ordinary Shares as a result of such Distribution to such
extent) and the portion of such Distribution shall be held in abeyance for the benefit of
the Holder until such time, if ever, as its right thereto would not result in the Holder
exceeding the Beneficial Ownership Limitation). |
EXHIBIT A - CONVERTIBLE
PROMISSORY NOTE
| (d) | Fundamental
Transaction. If, at any time while this Note is outstanding and not wholly converted,
(i) the Company, directly or indirectly, in one or more related transactions effects any
merger or consolidation of the Company with or into another person or entity, (ii) the Company
(or any subsidiary), directly or indirectly, effects any sale, lease, license, assignment,
transfer, conveyance or other disposition of all or substantially all of the Company’s
assets in one or a series of related transactions, (iii) any, direct or indirect, purchase
offer, tender offer or exchange offer (whether by the Company or another person or entity)
is completed pursuant to which holders of Ordinary Shares are permitted to sell, tender or
exchange their shares for other securities, cash or property and has been accepted by the
holders of 50% or more of the aggregate voting power of the Company’s share capital,
(iv) the Company, directly or indirectly, in one or more related transactions effects any
reclassification, reorganization or recapitalization of Ordinary Shares or any compulsory
share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged
for other securities, cash or property, or (v) the Company, directly or indirectly, in one
or more related transactions consummates a stock or share purchase agreement or other business
combination (including, without limitation, a reorganization, recapitalization, spin-off,
merger or scheme of arrangement) with another person or entity whereby such other person
or entity acquires more than 50% of the aggregate voting power of the Company’s share
capital (not including shares held by the other person or entity) (each a “Fundamental
Transaction”), then, upon any subsequent conversion of this Note, the Holder shall
have the right to receive, for each Conversion Ordinary Shares that would have been issuable
upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at
the option of the Holder (without regard to any limitation in Section 2(e) on the conversion
of this Note), the number of shares of capital stock of the successor or acquiring corporation
or Ordinary Shares of the Company, if it is the surviving corporation, and any additional
consideration (the “Alternate Consideration”) receivable as a result of
such Fundamental Transaction by a holder of the number Ordinary Shares representing the Conversion
Ordinary Shares for which this Note is exercisable immediately prior to such Fundamental
Transaction. For purposes of any such exercise, the determination of the Exercise Price shall
be appropriately adjusted to apply to such Alternate Consideration based on the amount of
Alternate Consideration issuable in respect of Ordinary Share in such Fundamental Transaction,
and the Company shall apportion the Exercise Price among the Alternate Consideration in a
reasonable manner reflecting the relative value of any different components of the Alternate
Consideration. If holders of Ordinary Shares are given any choice as to the securities, cash
or property to be received in a Fundamental Transaction, then the Holder shall be given the
same choice as to the Alternate Consideration it receives upon any conversion of this Note
following such Fundamental Transaction. |
The
Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “ Successor
Entity”) to assume in writing all of the obligations of the Company under this Note and the other Transaction Documents in
accordance with the provisions of this Section 4(e) pursuant to written agreements in form and substance reasonably satisfactory to the
Holder prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Note
a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Note which is
exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to Ordinary
Shares acquirable and receivable upon conversion of this Note (without regard to any limitations on the conversion of this Note) prior
to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock
(but taking into account the relative value of the Ordinary Shares pursuant to such Fundamental Transaction and the value of such shares
of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value
of this Note immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and
substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted
for (so that from and after the date of such Fundamental Transaction, the provisions of this Note and the other Transaction Documents
referring to the Company shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall
assume all of the obligations of the Company under this Note and the other Transaction Documents with the same effect as if such Successor
Entity had been named as the Company herein.
EXHIBIT A - CONVERTIBLE
PROMISSORY NOTE
For
purposes of this Section 4(d), “VWAP” means, for any date, the price determined by the first of the following clauses
that applies: (a) if the Ordinary Shares is then listed or quoted on a Trading Market, the daily volume weighted average price of the
Ordinary Shares for such date (or the nearest preceding date) on the Trading Market on which the Ordinary Shares is then listed or quoted
as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if
Bloomberg LP is not a Trading Market, the volume weighted average price of the Ordinary Shares for such date (or the nearest preceding
date) on Bloomberg LP as applicable, (c) if the Ordinary Shares is not then listed or quoted for trading on Bloomberg LP and if prices
for the Ordinary Shares are then reported in the “Pink Sheets” published by OTC Markets Group, Inc. (or a similar organization
or agency succeeding to its functions of reporting prices), the most recent bid price per ORDINARY SHARES so reported, or (d) in all
other cases, the fair market value of an Ordinary Shares as determined by an independent appraisers elected in good faith by the Holder
and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
| (e) | Calculations.
All calculations under this Section 4 shall be made to the nearest cent or the nearest Ordinary
Shares, as the case maybe. For purposes of this Section 4, the number of Ordinary Shares
deemed to be issued and outstanding as of a given date shall be the sum of the number of
Ordinary Shares (excluding treasury shares, if any) issued and outstanding and underlying
the Company’s Ordinary Shares. |
(i)
Adjustment to Exercise Price. Whenever the Conversion Price is adjusted pursuant to any provision of this Section 4, the Company
shall promptly deliver to the Holder by facsimile or email a notice setting forth the Exercise Price after such adjustment and any
resulting adjustment to the number of Conversion Ordinary Shares and setting forth a brief statement of the facts requiring such
adjustment.
(ii)
Notice to Allow Exercise by Holder. If (A) the Company declares a dividend (or any other distribution in whatever form) on Ordinary
Shares, (B) the Company declares a special nonrecurring cash dividend on or a redemption of Ordinary Shares, (C) the Company
authorizes the granting to all holders of Ordinary Shares rights or Note to subscribe for or purchase any shares of capital stock of
any class or of any rights, (D) the approval of any shareholders of the Company is required in connection with a Fundamental
Transaction, or (E) the Company authorizes the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the
Company, then, in each case, the Company shall cause to be delivered by facsimile or email to the Holder at its last facsimile
number or email address as it shall appear upon the Note Register of the Company, at least 10 calendar days prior to the applicable
record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of
such dividend, distribution, redemption, rights or Note, or if a record is not to be taken, the date as of which the holders of
Ordinary Shares of record to be entitled to such dividend, distributions, redemption, rights or Note are to be determined or (y) the
date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or
close, and the date as of which it is expected that holders of the Ordinary Shares of record shall be entitled to exchange their
Ordinary Shares for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer
or share exchange; provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not
affect the validity of the corporate action required to be specified in such notice. To the extent that any notice provided in this
Note 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 or otherwise. The Holder shall remain
entitled to exercise this Note during the period commencing on the date of such notice to the effective date of the event triggering
such notice except as may otherwise be expressly set forth herein.
EXHIBIT A - CONVERTIBLE
PROMISSORY NOTE
(iii)
Voluntary Adjustment by Company. Subject to any applicable rules and regulations, the Company may at any time during the term of
this Note, subject to the prior written consent of the Holder, reduce the then current Exercise Price to any amount and for any
period of time deemed appropriate by the board of directors of the Company.
5. Company Covenants as to Conversion to Ordinary Shares.
| (a) | The
Company covenants that, during the period the Note is outstanding and not wholly converted,
it will reserve from its authorized and unissued Ordinary Shares, a sufficient number to
provide for the issuance of the Conversion Ordinary Shares and their underlying Ordinary
Shares upon the exercise of any conversion rights under this Note. |
| (b) | The
Company further covenants that its issuance of this Note shall constitute full authority
to its officers who are charged with the duty of issuing the necessary Conversion Ordinary
Shares upon the exercise of the conversion rights under this Note. The Company will take
all such reasonable action as may be necessary to ensure that such Conversion Ordinary Shares
and the underlying Ordinary Shares maybe issued as provided herein without violation of any
applicable law or regulation, or of any requirements of any stock market upon which the Ordinary
Shares or Ordinary Shares may be listed. |
| (c) | The
Company covenants that all Conversion Ordinary Shares and the underlying Ordinary Shares
which may be issued upon the exercise of the purchase rights represented by this Note will,
upon exercise of the conversion rights represented by this Note, be duly authorized, validly
issued, fully paid and nonassessable and free from all taxes, liens and charges created by
the Company in respect of the issue thereof (other than taxes in respect of any transfer
occurring contemporaneously with such issue). |
| (d) | Except
and to the extent as waived or consented to by the Holder, the Company shall not by any action,
including, without limitation, amending its certificate of incorporation or through any reorganization,
transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any
other voluntary action, avoid or seek to avoid the observance or performance of any of the
terms of this Note, but will at all times in good faith assist in the carrying out of all
such terms and in the taking of all such actions as maybe necessary or appropriate to protect
the rights of Holder as set forth in this Note against impairment. |
| (e) | Without
limiting the generality of the foregoing, the Company will (i) not increase the par value
of any Conversion Ordinary Shares above the amount payable therefor upon such exercise immediately
prior to such increase in par value, (ii) take all such action as may be necessary or appropriate
in order that the Company may validly and legally issue fully paid and nonassessable Conversion
Ordinary Shares and the underlying Ordinary Shares upon the conversion of all or any part
of this Note and (iii) use commercially reasonable efforts to obtain all such authorizations,
exemptions or consents from any public regulatory body having jurisdiction thereof, as maybe,
necessary to enable the Company to perform its obligations under this Note. |
EXHIBIT A - CONVERTIBLE
PROMISSORY NOTE
| (f) | Without
limiting the generality of the foregoing, the Company shall (1) maintain a registrar (which
can be the Transfer Agent) that is a participant in the FAST program and in the DWAC system
so long as this Note remains outstanding and convertible; (2) issue and allot the Ordinary
Shares underlying the Conversion Ordinary Shares to the Transfer Agent and otherwise deliver
to the Transfer Agent all instructions, certificates, opinions, instruments and other documents
required by the Transfer Agent to effectuate the delivery of Conversion Ordinary Shares to
the Holder upon any conversion of this Note; (3) file such supplemental prospectus or other
documents required to ensure the continued effectiveness of and proper registration of the
Conversion Ordinary Shares under the Company’s registration statement on Form F-3 filed
with the United States Securities and Exchange Commission and declared effective on July
15, 2022, under SEC File Number 333-258259, until such time as the Conversion Ordinary Shares
issued in conversion of this Note are eligible for resale by the Holder without volume or
manner-of-sale limitations pursuant to Rule 144; and (4) deliver such other documents and
take such other actions as maybe reasonable and necessary to effectuate the timely delivery
of the Conversion Ordinary Shares upon conversion of this Note as intended herein. Before
taking any action which would result in an adjustment in the number of Conversion Ordinary
Shares into which this Note is convertible or in the Conversion Price, the Company shall
obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary
from any public regulatory body or bodies having jurisdiction thereof. |
6.
Interest Rate Limitation. Notwithstanding anything to the contrary contained in this Note or the Purchase Agreement, the
interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by
applicable law (the “Maximum Rate”). If the Holder shall receive interest in an amount that exceeds the Maximum
Rate, the excess interest shall be applied to the principal remaining owed under this Note or, if it exceeds such unpaid principal,
refunded to the Company. In determining whether the interest contracted for, charged, or received by the Holder exceeds the Maximum
Rate, the Holder may, to the extent permitted by applicable law, (a) characterize any payment that is not principal as an expense,
fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate,
allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of this Note. To the
fullest extent permitted by applicable law, and in accordance with the preceding sentence, the Holder has characterized the
Transaction Costs as not being interest.
7.
Action to Collect on Note. If action is instituted to collect on this Note or to affect any conversion of this Note, the Company
promises to pay all of the Holder’s costs and expenses, including reasonable attorney’s fees, incurred in connection with
such action.
8.
Loss of Note. Upon receipt by the Company of evidence satisfactory to it of the loss, theft, destruction or mutilation of this Note
or any Note exchanged for it, and indemnity satisfactory to the Company (in case of loss, theft or destruction) or surrender and cancellation
of such Note (in the case of mutilation), the Company will make and deliver in lieu of such Note a new Note of like tenor.
9. Miscellaneous.
| (a) | Governing
Law. The validity, interpretation, construction and performance of this Note, and all
acts and transactions pursuant hereto and the rights and obligations of the Company and Holder
shall be governed, construed and interpreted in accordance with the laws of the State of
New York, without giving effect to principles of conflicts of law. |
| (b) | Entire
Agreement. This Note, together with the Purchase Agreement and the documents referred
to therein, constitute the entire agreement and understanding between the Company and the
Holder relating to the subject matter herein and supersedes all prior or contemporaneous
discussions, understandings and agreements, whether oral or written between them relating
to the subject matter hereof. |
| (c) | Amendments
and Waivers. Any term of this Note may be amended only with the written consent of the
Company and the Holder. Any amendment or waiver effected in accordance with this Section
10(c) shall be binding upon the Company, the Holder and each transferee of any Note. |
| (d) | Successors
and Assigns. The terms and conditions of this Note shall inure to the benefit of and
be binding upon the respective successors and assigns of the Company and the Holder. Notwithstanding
the foregoing, the Holder may not assign, pledge, or otherwise transfer this Note without
the prior written consent of the Company. Subject to the preceding sentence, this Note may
be transferred only upon surrender of the original Note for registration of transfer, duly
endorsed, or accompanied by a duly executed written instrument of transfer in form satisfactory
to the Company. Thereupon, a new note for the same principal amount and interest will be
issued to, and registered in the name of, the transferee. Interest and principal are payable
only to the registered holder of this Note. |
| (e) | Notices.
Any notice, demand or request required or permitted to be given under this Note shall be
in writing and shall be deemed sufficient when delivered personally or by overnight courier
or sent by email, or 48 hours after being deposited in the U.S. mail as certified or registered
mail with postage prepaid, addressed to the party to be notified at such party’s address
as set forth on the signature page, as subsequently modified by written notice, or if no
address is specified on the signature page, at the most recent address set forth in the Company’s
books and records. |
| (f) | Counterparts.
This Note may be executed in any number of counterparts, each of which when so executed and
delivered shall be deemed an original, and all of which together shall constitute one and
the same instrument. |
IN
WITNESS WHEREOF, the Company has caused this Convertible Promissory Note to be executed by its officer thereunto duly authorized
as of the date first above indicated.
Antelope
Enterprise Holdings Limited |
|
|
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By: |
|
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Name:
|
Weilai
Zhang |
|
Title:
|
Chief
Executive Officer |
|
AGREED
TO AND ACCEPTED: |
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Indigo
Capital LP |
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By |
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Name:
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Title: |
|
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Exhibit
10.2
CONVERTIBLE
PROMISSORY NOTE
US$
990,000.00 |
[September
[ ]], 2024 |
New
York, NY |
|
For
value received, ANTELOPE ENTERPRISE HOLDINGS LIMITED, a corporation formed and existing under the laws of British Virgin Islands (the
“Company”), promises to pay to INDIGO CAPITAL LP, a limited partnership organized under the laws of the Cayman Islands,
or its permitted assigns (the “Holder”), the principal sum of NINE HUNDRED NINETY THOUSAND US DOLLARS (US$990,000.00).
1.
Basic Terms.
|
(a) |
Maturity.
While this Note is outstanding, principal and any accrued but unpaid interest under this Note shall be due and payable upon demand
of the Holder at any time after March 25, 2025 (the “Maturity Date”). Subject to Section 2 below, interest shall
accrue on this Note and shall be due and payable with each installment of principal. Notwithstanding the foregoing, the entire unpaid
principal sum of this Note, together with accrued and unpaid interest thereon, shall become immediately due and payable upon the
commission of any act of bankruptcy by the Company, the execution by the Company of a general assignment for the benefit of creditors,
the filing by or against the Company of a petition in bankruptcy or any petition for relief under the federal bankruptcy actor the
continuation of such petition without dismissal for a period of 90 days or more, or the appointment of a receiver or trustee to take
possession of the property or assets of the Company. |
|
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|
(b) |
Purchase
Agreement. This Note is the Convertible Promissory Note issued pursuant to that certain Convertible Promissory Note Purchase
Agreement dated September 25, 2024 (the “Purchase Agreement”). Capitalized terms not otherwise defined herein
have the meaning given them in the Purchase Agreement. |
|
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|
|
(c) |
Advances.
Within one Business Day after the date hereof, the Holder shall make payment upon this Note in the amount of NINE HUNDRED NINETY
THOUSAND US DOLLARS (US$990,000.00) (the “Payment”), less applicable Transaction Costs as described in the Purchase
Agreement. |
|
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(d) |
Payment;
No Prepayments. All payments shall be made in lawful money of the United States of America at such place as the Holder hereof
may from time to time designate in writing to the Company. Payment shall be credited first to the accrued interest then due and payable
and the remainder shall be applied to principal. The Company may not make payments on this Note prior to the Maturity Date. |
2.
Conversion.
|
(a) |
Definitions.
As used in this Note, the following terms have the following meanings: |
|
(1) |
“Business
Day” means any day on which banks are generally open for business in New York, New York, USA. |
|
|
|
|
(2) |
“Conversion
Ordinary Shares” means the Class A ordinary shares, no par value each, of the Company (the “Ordinary Shares”)
registered by the Company under its registration statement on Form F-3 filed with the United States Securities and Exchange Commission
and declared effective on July 15, 2022, under File Number 333-260958 which was originally Filed on July 6, 2022. |
|
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|
(3) |
“Conversion
Amount” means the amount of the Note that will be converted into Conversion Ordinary Shares. The aggregate Conversion Amount
is $990,000. |
EXHIBIT A - CONVERTIBLE
PROMISSORY NOTE
|
(4) |
“Conversion
Price” means the closing price of the Company’s Ordinary Shares, as reported on https://www.nasdaq.com/market-activity/stocks/aehl,
on the Trading Day immediately preceding the date hereof multiplied by the Discount Rate. |
|
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(5) |
“Discount
Rate” means 80.00%. |
|
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(6) |
“Trading
Day” means any day and the time span of such day during which principal stock exchange in which the Ordinary Shares are
traded is open, excluding electronic or extended trading hours. |
|
(b) |
Terms
of Conversion. Upon the election of the Holder, or upon the occurrence of an event of automatic conversion, the Company will
issue to the Holder a number of Conversion Ordinary Shares equal to the Conversion Amount divided by the Conversion Price. |
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(c) |
Elective
Conversion Rights. At any time, Holder may elect to convert the outstanding principal of the Payment into Conversion Ordinary
Shares of the Company in accordance with the terms hereof. |
|
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(d) |
Automatic
Conversion Rights. |
(i)
Change of Control. In the event of a Change of Control (as defined below) prior to repayment or conversion in full of this Note,
the outstanding principal of this Note shall become immediately become the Conversion Amount and will convert into Conversion Ordinary
Shares as if the Holder had made an election to convert immediately prior to such Change in Control. The term “Change of Control”
means (i) a sale of all or substantially all of the Company’s assets other than to an Excluded Entity (as defined below), (ii)
a merger, consolidation or other capital reorganization or business combination transaction of the Company with or into another corporation,
limited liability company or other entity other than an Excluded Entity, or (iii) the consummation of a transaction, or series of related
transactions, in which any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”)) becomes the “beneficial owner” (as defined in Rule 13d-3 of the Exchange
Act), directly or indirectly, of all of the Company’s then outstanding voting securities. Notwithstanding the foregoing, a transaction
shall not constitute a Change of Control if its purpose is to (A) change the jurisdiction of the Company’s incorporation, (B) create
a holding company that will be owned in substantially the same proportions by the persons who hold the Company’s securities immediately
before such transaction, or (C) obtain funding for the Company in a financing that is approved by the Company’s Board of Directors.
An “Excluded Entity” means a corporation or other entity of which the holders of voting capital stock of the Company outstanding
immediately prior to such transaction are the direct or indirect holders of voting securities representing at least a majority of the
votes entitled to be cast by all of such corporation’s or other entity’s voting securities outstanding immediately after
such transaction.
(ii)
Upon Maturity. Upon the Maturity Date, the aggregate Conversion Amount still outstanding shall convert automatically in accordance
with the terms hereof without the Holder needing to make an election but Ordinary Shares as if the Holder had made an election to convert
immediately prior to the Maturity Date.
3.
Mechanics and Effect of Conversion.
|
(a) |
In
General. Upon the full conversion of this Note, the Holder shall surrender this Note, duly endorsed, to the Company or any transfer
agent of the Company and shall deliver to the Company any other documentation reasonably required by the Company in connection with
such conversion (including, in the event of a conversion of this Note into Conversion Ordinary Shares, any applicable transaction
documents). Except as set forth in the last sentence of this Section 3(a) with respect to partial conversions, the Company shall
not be required to issue Conversion Ordinary Shares or other property into which this Note may convert until the Holder has surrendered
this Note to the Company and delivered to the Company such documentation. Upon conversion of this Note or any portion thereof, the
Company will be forever released from all of its obligations and liabilities under this Note with regard to that portion of the principal
amount and accrued interest being converted including without limitation the obligation to pay such portion of the principal amount
and accrued interest. Notwithstanding the foregoing, upon any conversion of apart but less than the whole of this Note, the Holder
need not surrender this Note, but shall deliver in lieu of this Note a duly executed instrument of satisfaction of this Note to the
extent of the portion of this Note then being converted, and for the purposes of this Section 3(a) the delivery of such instrument
of satisfaction shall be deemed a surrender of this Note to the extent of amount stated is such instrument. |
EXHIBIT A - CONVERTIBLE
PROMISSORY NOTE
|
(b) |
Delivery
of Conversion Ordinary Shares upon Conversion. Conversion Ordinary Shares hereunder shall be transmitted by the transfer agent
of the Company’s Ordinary Shares (the “Transfer Agent”) to the Holder by crediting the account of the Holder’s
or its designee’s balance account with The Depository Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”)
if the Company is then a participant in such system and there is an effective registration statement permitting the issuance of the
Conversion Ordinary Shares to or resale of the Conversion Ordinary Shares by the Holder by the date that is two (2) Trading Days
after the delivery to the Company of the Holder’s election to convert (such date, the “Conversion Ordinary Shares
Delivery Date”). Upon delivery of the Holder’s election to convert, the Holder shall be deemed for all corporate
purposes to have become the holder of record of the Conversion Ordinary Shares with respect to which this Note has been converted,
irrespective of the date of delivery of the Conversion Ordinary Shares. If the Transfer Agent fails for any reason to deliver to
the Holder the Conversion Ordinary Shares subject to an election by the Conversion Ordinary Shares Delivery Date, the Company shall
pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Conversion Ordinary Shares subject to
such exercise (based on the VWAP of the Ordinary Shares on the date of the applicable Notice of Exercise), $10 per Trading Day for
each Trading Day after such Conversion Ordinary Shares Delivery Date until such Conversion Ordinary Shares are delivered or Holder
rescinds such exercise. |
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(c) |
Compensation
for Buy-In on Failure to Timely Deliver Conversion Ordinary Shares Upon Exercise. In addition to any other rights available to
the Holder, if the Company fails to cause the Transfer Agent to transmit to the Holder the Conversion Ordinary Shares in accordance
with the provisions of Section 3(b) above on or before the Conversion Ordinary Shares Delivery Date, and if after such date the Holder
is required by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise
purchases, Ordinary Shares to deliver in satisfaction of a sale by the Holder of the Conversion Ordinary Shares which the Holder
anticipated receiving upon such exercise (a “Buy-In”), then the Company shall (A) pay in cash to the Holder the
amount, if any, by which (x) the Holder’s total purchase price (including brokerage commissions, if any) for the Ordinary Shares
so purchased exceeds (y) the amount obtained by multiplying (1) the number of Conversion Ordinary Shares that the Company was required
to deliver to the Holder in connection with the exercise at issue times (2) the price at which the sell order giving rise to such
purchase obligation was executed, and (B) at the option of the Holder, either reinstate the portion of the Warrant and equivalent
number of Conversion Ordinary Shares for which such exercise was not honored (in which case such exercise shall be deemed rescinded)
or deliver to the Holder the number of Ordinary Shares that would have been issued had the Company timely complied with its exercise
and delivery obligations hereunder. For example, if the Holder purchases Ordinary Shares having a total purchase price of $11,000
to cover a Buy-In with respect to an attempted exercise of Warrants with an aggregate sale price giving rise to such purchase obligation
of $10,000, under clause (A) of the immediately preceding sentence the Company shall be required to pay the Holder $1,000. The Holder
shall provide the Company written notice indicating the amounts payable to the Holder in respect of the Buy-In and, upon request
of the Company, evidence of the amount of such loss. Nothing herein shall limit a Holder’s right to pursue any other remedies
available to thereunder, at law or inequity including, without limitation, a decree of specific performance and/or injunctive relief
with respect to the Company’s failure to timely deliver Ordinary Shares upon exercise of the Warrant as required pursuant to
the terms hereof. |
EXHIBIT A - CONVERTIBLE
PROMISSORY NOTE
|
(d) |
No
Fractional Ordinary Shares or Scrip. No fractional Ordinary Shares or scrip representing fractional Ordinary Shares shall be
issued upon the conversion of this Note. As to any fraction of an Ordinary Shares which the Holder would otherwise be entitled to
purchase upon such exercise, the Company shall, at its election, either pay a cash adjustment in respect of such final fraction in
an amount equal to such fraction multiplied by the Conversion Price or round up to the next whole Ordinary Shares. |
4.
Certain Adjustments.
|
(a) |
Share
Dividends and Splits. If the Company, at any time while this Note is outstanding and not wholly converted: (i) pays a share dividend
or otherwise makes a distribution or distributions on its Ordinary Shares or any other equity or equity equivalent securities payable
in Ordinary Shares (which, for avoidance of doubt, shall not include any Ordinary Shares underlying Conversion Ordinary Shares issued
by the Company upon conversion of this Note), (ii) subdivides outstanding Ordinary Shares into a larger number of Ordinary Shares,
(iii) combines (including by way of reverse share split) outstanding Ordinary Shares into a smaller number of shares, or (iv) issues
by reclassification any shares of capital stock of the Company, then in each case the Conversion Price shall be multiplied by a fraction
of which the numerator shall be the number of Ordinary Shares (excluding treasury shares, if any) outstanding immediately before
such event and of which the denominator shall be the number of Ordinary Shares outstanding immediately after such event, and the
number of Conversion Ordinary Shares issuable upon con the aggregate Conversion Price of this Note remains unchanged. Any adjustment
made pursuant to this Section 4(a) shall become effective immediately after the record date for the determination of shareholders
entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of
a subdivision, combination or reclassification. |
|
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(b) |
Subsequent
Rights Offerings. In addition to any adjustments pursuant to Section 4(a) above, if at any time the Company grants, issues or
sells any Ordinary Shares or equivalent equity or rights to purchase shares, Note, securities or other property pro rata to
the record holders of Ordinary Shares (the “Purchase Rights”), then the Holder will be entitled to acquire, upon
the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had
held the number of Ordinary Shares acquirable upon complete conversion of this Note (without regard to any limitations on exercise
hereof, including without limitation, the Beneficial Ownership Limitation) and the exchange of Conversion Ordinary Shares into Ordinary
Shares immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no
such record is taken, the date as of which the record holders of Ordinary Shares are to be determined for the grant, issue or sale
of such Purchase Rights (provided, however, that, to the extent that the Holder’s right to participate in any
such Purchase Right would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled
to participate in such Purchase Right to such extent (or beneficial ownership of such Ordinary Shares as a result of such Purchase
Right to such extent) and such Purchase Right to such extent shall be held in abeyance for the Holder until such time, if ever, as
its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation). |
|
|
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|
(c) |
Pro
Rata Distributions. During such time as this Note is outstanding and not wholly converted, if the Company shall declare or make
any dividend or other distribution of its assets (or rights to acquire its assets) to holders of Ordinary Shares, by way of return
of capital or otherwise (including, without limitation, any distribution of cash, shares or other securities, property or options
by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a
“Distribution”), at any time after the issuance of this Note, then, in each such case, the Holder shall be entitled
to participate in such Distribution to the same extent that the Holder would have participated therein if the Holder had held the
number of shares of Ordinary Shares acquirable upon complete conversion of this Note (without regard to any limitations on exercise
hereof, including without limitation, the Beneficial Ownership Limitation) and the exchange of Conversion Ordinary Shares for Ordinary
Shares immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the date as
of which the record holders of Ordinary Shares are to be determined for the participation in such Distribution (provided,
however, that, to the extent that the Holder’s right to participate in any such Distribution would result in the Holder
exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such
extent (or in the beneficial ownership of any Ordinary Shares as a result of such Distribution to such extent) and the portion of
such Distribution shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not
result in the Holder exceeding the Beneficial Ownership Limitation). |
EXHIBIT A - CONVERTIBLE
PROMISSORY NOTE
|
(d) |
Fundamental
Transaction. If, at any time while this Note is outstanding and not wholly converted, (i) the Company, directly or indirectly,
in one or more related transactions effects any merger or consolidation of the Company with or into another person or entity, (ii)
the Company (or any subsidiary), directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or
other disposition of all or substantially all of the Company’s assets in one or a series of related transactions, (iii) any,
direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another person or entity) is completed
pursuant to which holders of Ordinary Shares are permitted to sell, tender or exchange their shares for other securities, cash
or property and has been accepted by the holders of 50% or more of the aggregate voting power of the Company’s share capital,
(iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization
of Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged
for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates
a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization,
spin-off, merger or scheme of arrangement) with another person or entity whereby such other person or entity acquires more than
50% of the aggregate voting power of the Company’s share capital (not including shares held by the other person or entity)
(each a “Fundamental Transaction”), then, upon any subsequent conversion of this Note, the Holder shall have
the right to receive, for each Conversion Ordinary Shares that would have been issuable upon such exercise immediately prior to
the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on
the conversion of this Note), the number of shares of capital stock of the successor or acquiring corporation or Ordinary Shares
of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”)
receivable as a result of such Fundamental Transaction by a holder of the number Ordinary Shares representing the Conversion Ordinary
Shares for which this Note is exercisable immediately prior to such Fundamental Transaction. For purposes of any such exercise,
the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount
of Alternate Consideration issuable in respect of Ordinary Share in such Fundamental Transaction, and the Company shall apportion
the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components
of the Alternate Consideration. If holders of Ordinary Shares are given any choice as to the securities, cash or property to be
received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives
upon any conversion of this Note following such Fundamental Transaction.
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The
Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “ Successor
Entity”) to assume in writing all of the obligations of the Company under this Note and the other Transaction Documents in
accordance with the provisions of this Section 4(e) pursuant to written agreements in form and substance reasonably satisfactory to the
Holder prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Note
a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Note which is
exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to Ordinary
Shares acquirable and receivable upon conversion of this Note (without regard to any limitations on the conversion of this Note) prior
to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock
(but taking into account the relative value of the Ordinary Shares pursuant to such Fundamental Transaction and the value of such shares
of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value
of this Note immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and
substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted
for (so that from and after the date of such Fundamental Transaction, the provisions of this Note and the other Transaction Documents
referring to the Company shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall
assume all of the obligations of the Company under this Note and the other Transaction Documents with the same effect as if such Successor
Entity had been named as the Company herein.
EXHIBIT A - CONVERTIBLE
PROMISSORY NOTE
For
purposes of this Section 4(d), “VWAP” means, for any date, the price determined by the first of the following clauses
that applies: (a) if the Ordinary Shares is then listed or quoted on a Trading Market, the daily volume weighted average price of the
Ordinary Shares for such date (or the nearest preceding date) on the Trading Market on which the Ordinary Shares is then listed or quoted
as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if
Bloomberg LP is not a Trading Market, the volume weighted average price of the Ordinary Shares for such date (or the nearest preceding
date) on Bloomberg LP as applicable, (c) if the Ordinary Shares is not then listed or quoted for trading on Bloomberg LP and if prices
for the Ordinary Shares are then reported in the “Pink Sheets” published by OTC Markets Group, Inc. (or a similar organization
or agency succeeding to its functions of reporting prices), the most recent bid price per ORDINARY SHARES so reported, or (d) in all
other cases, the fair market value of an Ordinary Shares as determined by an independent appraisers elected in good faith by the Holder
and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
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(e) |
Calculations.
All calculations under this Section 4 shall be made to the nearest cent or the nearest Ordinary Shares, as the case maybe. For purposes
of this Section 4, the number of Ordinary Shares deemed to be issued and outstanding as of a given date shall be the sum of the number
of Ordinary Shares (excluding treasury shares, if any) issued and outstanding and underlying the Company’s Ordinary Shares. |
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(f) |
Notice
to Holder. |
(i)
Adjustment to Exercise Price. Whenever the Conversion Price is adjusted pursuant to any provision of this Section 4, the Company
shall promptly deliver to the Holder by facsimile or email a notice setting forth the Exercise Price after such adjustment and any resulting
adjustment to the number of Conversion Ordinary Shares and setting forth a brief statement of the facts requiring such adjustment.
(ii)
Notice to Allow Exercise by Holder. If (A) the Company declares a dividend (or any other distribution in whatever form) on Ordinary
Shares, (B) the Company declares a special nonrecurring cash dividend on or a redemption of Ordinary Shares, (C) the Company authorizes
the granting to all holders of Ordinary Shares rights or Note to subscribe for or purchase any shares of capital stock of any class or
of any rights, (D) the approval of any shareholders of the Company is required in connection with a Fundamental Transaction, or (E) the
Company authorizes the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company, then, in each case,
the Company shall cause to be delivered by facsimile or email to the Holder at its last facsimile number or email address as it shall
appear upon the Note Register of the Company, at least 10 calendar days prior to the applicable record or effective date hereinafter
specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption,
rights or Note, or if a record is not to be taken, the date as of which the holders of Ordinary Shares of record to be entitled to such
dividend, distributions, redemption, rights or Note are to be determined or (y) the date on which such reclassification, consolidation,
merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected that holders
of the Ordinary Shares of record shall be entitled to exchange their Ordinary Shares for securities, cash or other property deliverable
upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided that the failure to deliver such notice
or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified in such
notice. To the extent that any notice provided in this Note 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 or otherwise. The Holder shall remain entitled to exercise this Note during the period commencing on the date of such notice
to the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
EXHIBIT A - CONVERTIBLE
PROMISSORY NOTE
(iii)
Voluntary Adjustment by Company. Subject to any applicable rules and regulations, the Company may at any time during the term
of this Note, subject to the prior written consent of the Holder, reduce the then current Exercise Price to any amount and for any period
of time deemed appropriate by the board of directors of the Company.
5.
Company Covenants as to Conversion to Ordinary Shares.
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(a) |
The
Company covenants that, during the period the Note is outstanding and not wholly converted, it will reserve from its authorized and
unissued Ordinary Shares, a sufficient number to provide for the issuance of the Conversion Ordinary Shares and their underlying
Ordinary Shares upon the exercise of any conversion rights under this Note. |
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(b) |
The
Company further covenants that its issuance of this Note shall constitute full authority to its officers who are charged with the
duty of issuing the necessary Conversion Ordinary Shares upon the exercise of the conversion rights under this Note. The Company
will take all such reasonable action as may be necessary to ensure that such Conversion Ordinary Shares and the underlying Ordinary
Shares maybe issued as provided herein without violation of any applicable law or regulation, or of any requirements of any stock
market upon which the Ordinary Shares or Ordinary Shares may be listed. |
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(c) |
The
Company covenants that all Conversion Ordinary Shares and the underlying Ordinary Shares which may be issued upon the exercise of
the purchase rights represented by this Note will, upon exercise of the conversion rights represented by this Note, be duly authorized,
validly issued, fully paid and nonassessable and free from all taxes, liens and charges created by the Company in respect of the
issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue). |
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(d) |
Except
and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending
its certificate of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or
sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this
Note, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as maybe
necessary or appropriate to protect the rights of Holder as set forth in this Note against impairment. |
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(e) |
Without
limiting the generality of the foregoing, the Company will (i) not increase the par value of any Conversion Ordinary Shares above
the amount payable therefor upon such exercise immediately prior to such increase in par value, (ii) take all such action as may
be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable Conversion Ordinary
Shares and the underlying Ordinary Shares upon the conversion of all or any part of this Note and (iii) use commercially reasonable
efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as
maybe, necessary to enable the Company to perform its obligations under this Note. |
EXHIBIT A - CONVERTIBLE
PROMISSORY NOTE
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(f) |
Without
limiting the generality of the foregoing, the Company shall (1) maintain a registrar (which can be the Transfer Agent) that is a
participant in the FAST program and in the DWAC system so long as this Note remains outstanding and convertible; (2) issue and allot
the Ordinary Shares underlying the Conversion Ordinary Shares to the Transfer Agent and otherwise deliver to the Transfer Agent all
instructions, certificates, opinions, instruments and other documents required by the Transfer Agent to effectuate the delivery of
Conversion Ordinary Shares to the Holder upon any conversion of this Note; (3) file such supplemental prospectus or other documents
required to ensure the continued effectiveness of and proper registration of the Conversion Ordinary Shares under the Company’s
registration statement on Form F-3 filed with the United States Securities and Exchange Commission and declared effective on July
15, 2022, under SEC File Number 333-258259, until such time as the Conversion Ordinary Shares issued in conversion of this Note are
eligible for resale by the Holder without volume or manner-of-sale limitations pursuant to Rule 144; and (4) deliver such other documents
and take such other actions as maybe reasonable and necessary to effectuate the timely delivery of the Conversion Ordinary Shares
upon conversion of this Note as intended herein. Before taking any action which would result in an adjustment in the number of Conversion
Ordinary Shares into which this Note is convertible or in the Conversion Price, the Company shall obtain all such authorizations
or exemptions thereof, or consents thereto, as may be necessary from any public regulatory body or bodies having jurisdiction thereof. |
6.
Interest Rate Limitation. Notwithstanding anything to the contrary contained in this Note or the Purchase Agreement, the interest
paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable
law (the “Maximum Rate”). If the Holder shall receive interest in an amount that exceeds the Maximum Rate, the excess
interest shall be applied to the principal remaining owed under this Note or, if it exceeds such unpaid principal, refunded to the Company.
In determining whether the interest contracted for, charged, or received by the Holder exceeds the Maximum Rate, the Holder may, to the
extent permitted by applicable law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest,
(b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts
the total amount of interest throughout the contemplated term of this Note. To the fullest extent permitted by applicable law, and in
accordance with the preceding sentence, the Holder has characterized the Transaction Costs as not being interest.
7.
Action to Collect on Note. If action is instituted to collect on this Note or to affect any conversion of this Note, the Company
promises to pay all of the Holder’s costs and expenses, including reasonable attorney’s fees, incurred in connection with
such action.
8.
Loss of Note. Upon receipt by the Company of evidence satisfactory to it of the loss, theft, destruction or mutilation of this Note
or any Note exchanged for it, and indemnity satisfactory to the Company (in case of loss, theft or destruction) or surrender and cancellation
of such Note (in the case of mutilation), the Company will make and deliver in lieu of such Note a new Note of like tenor.
9.
Miscellaneous.
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(a) |
Governing
Law. The validity, interpretation, construction and performance of this Note, and all acts and transactions pursuant hereto and
the rights and obligations of the Company and Holder shall be governed, construed and interpreted in accordance with the laws of
the State of New York, without giving effect to principles of conflicts of law. |
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(b) |
Entire
Agreement. This Note, together with the Purchase Agreement and the documents referred to therein, constitute the entire agreement
and understanding between the Company and the Holder relating to the subject matter herein and supersedes all prior or contemporaneous
discussions, understandings and agreements, whether oral or written between them relating to the subject matter hereof. |
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(c) |
Amendments
and Waivers. Any term of this Note may be amended only with the written consent of the Company and the Holder. Any amendment
or waiver effected in accordance with this Section 10(c) shall be binding upon the Company, the Holder and each transferee of any
Note. |
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(d) |
Successors
and Assigns. The terms and conditions of this Note shall inure to the benefit of and be binding upon the respective successors
and assigns of the Company and the Holder. Notwithstanding the foregoing, the Holder may not assign, pledge, or otherwise transfer
this Note without the prior written consent of the Company. Subject to the preceding sentence, this Note may be transferred only
upon surrender of the original Note for registration of transfer, duly endorsed, or accompanied by a duly executed written instrument
of transfer in form satisfactory to the Company. Thereupon, a new note for the same principal amount and interest will be issued
to, and registered in the name of, the transferee. Interest and principal are payable only to the registered holder of this Note. |
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(e) |
Notices.
Any notice, demand or request required or permitted to be given under this Note shall be in writing and shall be deemed sufficient
when delivered personally or by overnight courier or sent by email, or 48 hours after being deposited in the U.S. mail as certified
or registered mail with postage prepaid, addressed to the party to be notified at such party’s address as set forth on the
signature page, as subsequently modified by written notice, or if no address is specified on the signature page, at the most recent
address set forth in the Company’s books and records. |
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(f) |
Counterparts.
This Note may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original,
and all of which together shall constitute one and the same instrument. |
IN
WITNESS WHEREOF, the Company has caused this Convertible Promissory Note to be executed by its officer thereunto duly authorized
as of the date first above indicated.
Antelope
Enterprise Holdings Limited |
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By: |
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Name:
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Weilai
Zhang |
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Title:
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Chief
Executive Officer |
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AGREED
TO AND ACCEPTED: |
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Indigo
Capital LP |
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By |
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Name: |
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Title: |
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Antelope Enterprise (NASDAQ:AEHL)
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