UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16
UNDER THE SECURITIES EXCHANGE ACT OF 1934
For the month of August 2024
Commission File Number: 001-41675
GOLDEN HEAVEN GROUP HOLDINGS LTD.
No. 8 Banhouhaichuan Rd
Xiqin Town, Yanping District
Nanping City, Fujian Province, China 353001
(Address of principal executive office)
Indicate by check mark whether the registrant
files or will file annual reports under cover of Form 20-F or Form 40-F:
Form 20-F ☒ Form
40-F ☐
Entry into a Material Definitive Agreement
On August 2, 2024, Golden Heaven Group Holdings
Ltd. (the “Company”) entered into a share purchase agreement (the “Agreement”) with an investor (the “Investor”).
Pursuant to the Agreement, the Investor agreed to purchase, and the Company agreed to issue and sell to the Investor, (i) 15,000,000 Class
A ordinary shares of the Company, par value of $0.0001 per share (the “Shares”), at a purchase price of $0.15 per share, and
(ii) a warrant to purchase up to 30,000,000 Class A ordinary shares of the Company at an exercise price of US$0.20 per share (the “Warrant”),
for an aggregate purchase price of $2,250,000 (the “Offering”). The Warrant is exercisable immediately and shall terminate
upon the earliest to occur of the following: (a) the expiration of the period of five years as of the date of the Warrant; or a sale of
the Company, which means (i) any sale, transfer or other disposition to another company of all or substantially all of the Company’s
assets, (ii) the sale of shares of the Company resulting in more than 50% of the voting power of the Company or of the surviving entity
being vested in persons other than the persons who own 50% or more of the voting power of the Company immediately prior to the effectiveness
of such transaction, or (iii) a merger or consolidation of the Company resulting in more than 50% of the voting power of the Company or
of the surviving entity being vested in persons other than the persons who own 50% or more of the voting power of the Company immediately
prior to the effectiveness of such transaction. The Shares and the Warrant were offered under the Company’s registration statement
on Form F-3 (File No. 333-279942), initially filed with the U.S. Securities and Exchange Commission on June 4, 2024, and declared effective
on June 27, 2024 (the “Registration Statement”). A prospectus supplement to the Registration Statement in connection with
this Offering was filed with the U.S. Securities and Exchange Commission on August 8, 2024. The Agreement, the transactions contemplated
thereby, and the issuance of the Shares and Warrant have been approved by the Company’s board of directors.
The closing of the transactions contemplated by
the Agreement took place on August 8, 2024. The Company received gross proceeds of approximately $2,250,000 from the issuance and sale
of the Shares and Warrant and intends to use the net proceeds from the Offering for working capital and other general corporate purposes.
The foregoing description of the Agreement and
the Warrant are qualified in their entirety by reference to the full texts of the Form of Agreement and the Form of Warrant, which are
filed as Exhibit 10.1 and Exhibit 10.2 to this Form 6-K, respectively, and are incorporated herein by reference.
Exhibits
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.
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Golden Heaven Group Holdings Ltd. |
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Date: August 8, 2024 |
By: |
/s/ Jin Xu |
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Name: |
Jin Xu |
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Title: |
Chief Executive Officer and
Chairman of the Board of Directors
(Principal Executive Officer) |
2
Exhibit 5.1
![](https://www.sec.gov/Archives/edgar/data/1928340/000121390024066785/ex5-1_001.jpg)
Golden Heaven Group Holdings Ltd.
No. 8 Banhouhaichuan Rd
Xiqin Town, Yanping District
Nanping City, Fujian Province, China 353001 |
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D +852 3656 6054 / +852 3656 6073 |
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E
nathan.powell@ogier.com
rachel.huang@ogier.com |
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Reference: NMP/RYH/502469.00002 |
8 August 2024
Dear Sirs
Golden Heaven Group Holdings Ltd. (the Company)
We have acted as Cayman Islands counsel to the
Company in connection with the Company’s registration statement on Form F-3, including all amendments and supplements thereto (the
Registration Statement), initially filed on 4 June 2024 with the U.S. Securities and Exchange Commission (the Commission)
under the United States Securities Act of 1933, as amended to date (the Act) relating to securities to be issued and sold by the
Company from time to time, and the prospectus supplement dated 7 August 2024 (the Prospectus Supplement). The Registration Statement
and the Prospectus Supplement relate to the sale of (a) 15,000,000 class A ordinary shares of a par value of US$0.0001 each of the Company
(the Shares) in accordance with a share purchase agreement dated 2 August 2024 entered into between the Company and the purchaser(s)
named therein (the SPA) and (b) a warrant (the Warrant) to purchase up to 30,000,000 Shares issuable upon exercise of the
Warrant in accordance with the SPA and a warrant document constituting the Warrant to be signed by the Company (the Warrant Document).
We are furnishing this opinion as Exhibit 5.1
to the Company’s current report on Form 6-K which will be incorporated by reference into the Registration Statement and the Prospectus
Supplement (the Form 6-K).
For
the purposes of giving this opinion, we have examined originals, copies, or drafts of the documents set forth in Schedule 1. In addition,
we have examined the corporate and other documents and conducted the searches listed in Schedule 1. We have not made any searches or enquiries
concerning and have not examined any documents entered into by or affecting the Company or any other person, save for the searches, enquiries
and examinations expressly referred to in Schedule 1.
Ogier
Providing
advice on British Virgin Islands,
Cayman Islands and Guernsey laws
Floor
11 Central Tower
28
Queen’s Road Central
Central
Hong
Kong
T
+852 3656 6000
F
+852 3656 6001
ogier.com |
|
Partners
Nicholas
Plowman
Nathan
Powell
Anthony
Oakes
Oliver
Payne
Kate
Hodson
David
Nelson
Justin
Davis
Joanne
Collett |
|
Florence
Chan*
Lin
Han†
Cecilia
Li**
Rachel
Huang**
Yuki
Yan**
Richard Bennett**‡
James
Bergstrom‡
Marcus
Leese‡ |
|
* admitted
in New Zealand
†
admitted in New York
**
admitted in England and Wales
‡
not ordinarily resident in Hong Kong |
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2 of 7
In giving this opinion we have relied
upon the assumptions set forth in this paragraph 2 without having carried out any independent investigation or verification in respect
of those assumptions:
| (a) | all original documents examined by us are authentic and complete; |
| (b) | all copies of documents examined by us (whether in facsimile, electronic or other form) conform to the
originals and those originals are authentic and complete; |
| (c) | all signatures, seals, dates, stamps and markings (whether on original or copy documents) are genuine; |
| (d) | each of the Good Standing Certificate, the Register and the Director’s Certificate (each as defined
in Schedule 1) is accurate and complete as at the date of this opinion; |
| (e) | the CORIS Search (as defined in Schedule 1) which we have examined is accurate and that the information
disclosed by the CORIS Search is true and complete and that such information has not since been altered; |
| (f) | all copies of the Registration Statement, the Prospectus Supplement, the SPA and the Warrant Document
are true and correct copies and the Registration Statement, the Prospectus Supplement, the SPA and the Warrant Document conform in every
material respect to the latest drafts of the same produced to us and, where any of the Registration Statement, the Prospectus Supplement,
the SPA or the Warrant Document has been provided to us in successive drafts marked-up to indicate changes to such documents, all such
changes have been so indicated; |
| (g) | the Board Resolutions (as defined in Schedule 1) remain in full force and effect and each of the directors
of the Company has acted in good faith with a view to the best interests of the Company and has exercised the standard of care, diligence
and skill that is required of him or her in approving the Registration Statement, the Prospectus Supplement, the SPA and the Warrant Document
and no director has a financial interest in or other relationship to a party of the transactions contemplated by the Registration Statement,
the Prospectus Supplement, the SPA and the Warrant Document which has not been properly disclosed in the Board Resolutions; |
| (h) | each of the parties to the SPA and the Warrant Document other than the Company is duly incorporated, formed
or organised (as applicable), validly existing and in good standing under all relevant laws; |
| (i) | each of the SPA and the Warrant Document has been or, as the case may be, will be duly authorised, executed
and unconditionally delivered by or on behalf of all parties to it in accordance with all applicable laws (other than, in the case of
the Company, the laws of the Cayman Islands); |
| (j) | each of the SPA is (and in the case of the Warrant Document, will be) legal, valid and binding and enforceable
against all relevant parties in accordance with its terms under relevant law (other than, in the case of the Company, the laws of the
Cayman Islands); |
| (k) | the Warrant Document will be duly executed, dated and delivered by all parties thereto in materially the
same form as the last draft examined by us; |
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| (l) | none of the opinions expressed herein will be adversely affected by the laws or public policies of any
jurisdiction other than the Cayman Islands. In particular, but without limitation to the previous sentence: |
| (i) | the laws or public policies of any jurisdiction other than the Cayman Islands will not adversely affect
the capacity or authority of the Company; and |
| (ii) | neither the execution or delivery of the Registration Statement, the Prospectus Supplement, the SPA or
the Warrant Document nor the exercise by any party to the Registration Statement, the Prospectus Supplement, the SPA or the Warrant Document
of its rights or the performance of its obligations under them contravene those laws or public policies; |
| (m) | there are no agreements, documents or arrangements (other than the documents expressly referred to in
this opinion as having been examined by us) that materially affect or modify the Registration Statement, the Prospectus Supplement, the
SPA, the Warrant Document or the transactions contemplated by them or restrict the powers and authority of the Company in any way; |
| (n) | no monies paid to or for the account of any party under the Registration Statement, the Prospectus Supplement,
the SPA and the Warrant Document represent or will represent criminal property or terrorist property (as defined in the Proceeds of Crime
Act (as revised) and the Terrorism Act (as revised), respectively); |
| (o) | the issue of the Shares upon the exercise of the Warrant pursuant to the Warrant Document at the time
of issuance, whether as principal issue or on the conversion, exchange or exercise of any Warrant, would not result in the Company exceeding
its authorised share capital; and upon the issue of any Shares, the Company will receive consideration for the full issue price thereof
which shall be equal to at least the par value thereof and that such issuance will be duly registered, and will continue to be registered,
in the Company’s register of members; |
| (p) | there are no circumstances or matters of fact existing which may properly form the basis for an application
for an order for rectification of the register of members of the Company; |
| (q) | the certificates for the Shares will conform to the specimen as set out thereof and upon issuance will
have been duly countersigned by the transfer agent and duly registered by the registrar for the Shares, or, if uncertificated, valid book-entry
notations for the issuance of the Shares in uncertificated form will have been duly made in the share register of the Company; |
| (r) | no invitation has been or will be made by or on behalf of the Company to the public in the Cayman Islands
to subscribe for any of the Shares; |
| (s) | at the time of the issuance of the Shares and the exercise of the Warrant in accordance with its terms
(the Exercise): |
| (i) | the Company will not have been struck off or placed in liquidation; and |
| (ii) | the issue price for each share issued and each share issued upon the Exercise will not be less than the
par value of such share; |
| (t) | neither the directors nor the shareholders of the Company have taken any steps to appoint a liquidator
of the Company and no receiver or restructuring officer has been appointed over any of the Company’s property or assets; and |
| (u) | there is no provision of the law of any jurisdiction, other than the Cayman Islands, which would have
any implication in relation to the opinions expressed herein. |
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On the basis of the examinations and
assumptions referred to above and subject to the qualifications set forth in Schedule 2 and the limitations set forth below, we are of
the opinion that:
Corporate
status
| (a) | The Company has been duly incorporated as an exempted company with limited liability and is validly existing
and in good standing with the Registrar of Companies of the Cayman Islands (the Registrar). |
Authorised
share capital
| (b) | The authorised share capital of the Company is US$200,000 divided into: (i) 1,800,000,000 Shares, and
(ii) 200,000,000 class B ordinary shares of par value of US$0.0001 each. |
Valid issuance
of Shares
| (c) | The Shares to be offered and issued by the Company as contemplated by the Registration Statement, the
Prospectus Supplement and the SPA (including the issuance of the Shares upon the exercise of the Warrant in accordance with the Warrant
Document) have been duly authorised and, when issued by the Company upon: |
| (i) | payment in full of the consideration as set out in the Registration Statement, the Prospectus Supplement
and the SPA and in accordance with the terms set out in the Registration Statement, the Prospectus Supplement and the SPA (including the
issuance of the Shares upon the exercise of the Warrant in accordance with the Warrant Document (when the Warrant Document has been duly
executed, dated and delivered by the Company and the parties thereto)) and in accordance with the Board Resolutions and the Memorandum
and Articles; and |
| (ii) | the entry of those Shares as fully paid on the register of members of the Company, |
shall be validly
issued, fully paid and non-assessable.
We offer no opinion:
| (a) | as to any laws other than the laws of the Cayman Islands, and we have not, for the purposes of this opinion,
made any investigation of the laws of any other jurisdiction, and we express no opinion as to the meaning, validity, or effect of references
in the documents reviewed to statutes, rules, regulations, codes or judicial authority of any jurisdiction other than the Cayman Islands; |
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5 of 7
| (b) | except to the extent that this opinion expressly provides otherwise, as to the commercial terms of, or
the validity, enforceability or effect of the documents reviewed (or as to how the commercial terms of such documents reflect the intentions
of the parties), the accuracy of representations, the fulfilment of warranties or conditions, the occurrence of events of default or terminating
events or the existence of any conflicts or inconsistencies among the documents reviewed and any other agreements into which the Company
may have entered or any other documents; or |
| (c) | as to whether the acceptance, execution or performance of the Company’s obligations under the documents
reviewed will result in the breach of or infringe any other agreement, deed or document (other than the Memorandum and Articles (as defined
in Schedule 1)) entered into by or binding on the Company. |
| 5 | Governing law of this opinion |
| (a) | governed by, and shall be construed in accordance with, the laws of the Cayman Islands; |
| (b) | limited to the matters expressly stated in it; and |
| (c) | confined to, and given on the basis of, the laws and practice in the Cayman Islands at the date of this
opinion. |
| 5.2 | Unless otherwise indicated, a reference to any specific Cayman Islands legislation is a reference to that
legislation as amended to, and as in force at, the date of this opinion. |
| 6 | Who can rely on this opinion |
| 6.1 | We hereby consent to the filing of this opinion as an exhibit to the Form 6-K to the reference to our
firm under the headings “Legal Matters” and “Enforceability of Civil Liabilities” of the Prospectus
Supplement and the Registration Statement. In giving such consent, we do not thereby admit that we come within the category of persons
whose consent is required under Section 7 of the Act, or the Rules and Regulations of the Commission thereunder. |
| 6.2 | This opinion may be used only in connection with the Shares by the Company while the Registration Statement
and the Prospectus Supplement are effective. With the exception of your professional advisers (acting only in that capacity), it may not
be relied upon by any person, other than persons entitled to rely upon it pursuant to the provisions of the Act, without our prior written
consent. |
Yours faithfully
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SCHEDULE 1
Documents examined
| 1 | The certificate of incorporation of the Company dated 8 January 2020 issued by the Registrar. |
| 2 | The second amended and restated memorandum and articles of association of the Company adopted by special
resolution passed on 11 August 2023 and filed with the Registrar on 21 August 2023 (together, the Memorandum and the Articles). |
| 3 | The certificate of good standing dated 14 May 2024 (the Good Standing Certificate) issued by the
Registrar in respect of the Company. |
| 4 | The register of directors and officers of the Company filed with the Registrar on 2 April 2024 (the Register). |
| 5 | A certificate from a director of the Company dated 8 August 2024 as to certain matters of facts (the Director’s
Certificate). |
| 6 | The Register of Writs at the office of the Clerk of Courts in the Cayman Islands as inspected by us on
8 August 2024 (the Register of Writs). |
| 7 | A search on the Cayman Online Registry Information Service conducted against the Company at the Registrar
on 8 August 2024 (the CORIS Search). |
| 8 | The minutes of a meeting of the board of directors of the Company held on 30 May 2024 approving, among
other things, the Company’s filing of the Registration Statement. |
| 9 | The minutes of a meeting of the board of directors of the Company held on 2 August 2024 approving, among
other things, the Prospectus Supplement, the SPA, the Warrant Document and the issuance of the Shares and the Warrant (together with item
8, collectively referred to as the Board Resolutions). |
| 10 | The Registration Statement and the Form 6-K. |
| 11 | The Prospectus Supplement. |
| 13 | A form of the Warrant Document filed as an exhibit of the Form 6-K. |
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SCHEDULE 2
Qualifications
Good standing
| 1 | Under the Companies Act (Revised) (Companies Act) of the Cayman Islands, annual returns in respect
of the Company must be filed with the Registrar, together with payment of annual filing fees. A failure to file annual returns and pay
annual filing fees may result in the Company being struck off the Register of Companies, following which its assets will vest in the Financial
Secretary of the Cayman Islands and will be subject to disposition or retention for the benefit of the public of the Cayman Islands. |
| 2 | In good standing means only that as of the date of the Good Standing Certificate the Company is
up-to-date with the filing of its annual returns and payment of annual fees with the Registrar. We have made no enquiries into the Company’s
good standing with respect to any filings or payment of fees, or both, that it may be required to make under the laws of the Cayman Islands
other than the Companies Act. |
Register of members
| 3 | Under the Companies Act, the register of members of a Cayman Islands company is by statute regarded as
prima facie evidence of any matters which the Companies Act directs or authorises to be inserted therein. A third party interest
in the shares in question would not appear. An entry in the register of members may yield to a court order for rectification (for example,
in the event of fraud or manifest error). |
Non-assessable
| 4 | In this opinion, the phrase “non-assessable” means, with respect to the Shares, that a shareholder
shall not, solely by virtue of its status as a shareholder, be liable for additional assessments or calls on the Shares by the Company
or its creditors (except in exceptional circumstances, such as involving fraud, the establishment of an agency relationship or an illegal
or improper purpose or other circumstance in which a court may be prepared to pierce or lift the corporate veil). |
| 5 | We are not aware of any Cayman Islands authority as to when the courts would set aside the limited liability
of a shareholder in a Cayman Islands company. Our opinion on the subject is based on the Companies Act and English common law authorities,
the latter of which are persuasive but not binding in the courts of the Cayman Islands. Under English authorities, circumstances in which
a court would attribute personal liability to a shareholder are very limited, and include: (a) such shareholder expressly assuming direct
liability (such as a guarantee); (b) the company acting as the agent of such shareholder; (c) the company being incorporated by or at
the behest of such shareholder for the purpose of committing or furthering such shareholder’s fraud, or for a sham transaction otherwise
carried out by such shareholder. In the absence of these circumstances, we are of the opinion that a Cayman Islands’ court would
have no grounds to set aside the limited liability of a shareholder. |
Register of Writs
| 6 | Our examination of the Register of Writs cannot conclusively reveal whether or not there is: |
| a. | any current or pending litigation in the Cayman Islands against the Company; or |
| b. | any application for the winding up or dissolution of the Company
or the appointment of any liquidator, trustee in bankruptcy or restructuring officer in respect of the Company or any of its assets, |
as notice of these
matters might not be entered on the Register of Writs immediately or updated expeditiously or the court file associated with the matter
or the matter itself may not be publicly available (for example, due to sealing orders having been made). Furthermore, we have not conducted
a search of the summary court. Claims in the summary court are limited to a maximum of CI $20,000.
Exhibit 10.1
SHARE PURCHASE AGREEMENT
This Share Purchase
Agreement (this “Agreement”) is dated as of August 2, 2024 (the “Effective Date”), between Golden
Heaven Group Holdings Ltd., an exempt company incorporated under the laws of Cayman Islands (the “Company”), and the
purchasers identified on the signature pages hereto (a “Purchaser” or collectively the “Purchasers”).
WHEREAS, subject
to the terms and conditions set forth in this Agreement, the Company desires to issue and sell to each Purchaser, and each Purchaser,
severally and not jointly, desires to purchase from the Company, securities of the Company as more fully described in this Agreement.
NOW, THEREFORE,
IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration the receipt and adequacy
of which are hereby acknowledged, the Company and each Purchaser agree as follows:
ARTICLE I.
DEFINITIONS
1.1 Definitions.
In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following terms have the meanings
set forth in this Section 1.1:
“Action” shall have the meaning ascribed
to such term in Section 3.1(i).
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person as such terms are used in and construed under Rule 405 under the Securities Act.
“Board of Directors” means the board of
directors of the Company.
“Closing” means the closing of the purchase
and sale of the Shares and the Warrants pursuant to Section 2.1.
“Closing
Date” means the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable parties
thereto, and all conditions precedent to (i) the Purchasers’ obligations to pay the Subscription Amount and (ii) the Company’s
obligations to deliver the Shares and Warrants, in each case, have been satisfied or waived, but in no event later than the second (2nd)
Trading Day following the date hereof.
“Commission” means the United States Securities
and Exchange Commission.
“Company Counsel” means Hunter Taubman
Fischer & Li LLC.
“Disclosure Schedules” means the Disclosure
Schedules of the Company delivered concurrently herewith.
“Disclosure
Time” means, (i) if this Agreement is signed on a day that is not a Trading Day or after 9:00 a.m. (New York City time) and
before midnight (New York City time) on any Trading Day, 9:01 a.m. (New York City time) on the Trading Day immediately following the date
hereof, unless otherwise instructed as to an earlier time by the Company, and (ii) if this Agreement is signed between midnight (New York
City time) and 9:00 a.m. (New York City time) on any Trading Day, no later than 9:01 a.m. (New York City time) on the date hereof, unless
otherwise instructed as to an earlier time by the Company.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Liens”
means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Material Adverse Effect”
shall have the meaning assigned to such term in Section 3.1(a).
“Ordinary
Shares” means the Class A Ordinary Shares of the Company of par value $0.0001 each, and any other class of securities into which
such securities may hereafter be reclassified or changed.
“Ordinary
Shares Equivalents” means any securities of the Company which would entitle the holder thereof to acquire at any time Ordinary
Shares, including, without limitation, any debt, preferred shares, right, option, warrant or other instrument that is at any time convertible
into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Ordinary Shares.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company,
joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding,
such as a deposition), whether commenced or threatened.
“Registration
Statement” means the Securities Act Registration Statement on Form F-3 initially filed by the Company on June 4, 2024, and declared
effective by the SEC on June 27, 2024, as amended and supplemented from time to time by the Company.
“Required Approvals”
shall have the meaning ascribed to such term in Section 3.1(d).
“SEC Reports” shall have the meaning ascribed
to such term in Section 3.1(g).
“Securities Act” means
the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Shares” means the Class A Ordinary Shares
issued or issuable to each Purchaser pursuant to this Agreement.
“Short
Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be
deemed to include locating and/or borrowing shares of Ordinary Shares).
“Subscription
Amount” means, as to the Purchaser, the aggregate amount to be paid for Shares purchased hereunder as specified below such Purchaser’s
name on the signature page of this Agreement and next to the heading “Subscription Amount,” in United States dollars and in
immediately available funds.
“Trading Day”
means a day on which the principal Trading Market is open for trading.
“Trading Market” means Nasdaq Stock Market,
LLC.
“Transaction
Documents” means this Agreement, Warrant, all exhibits and schedules thereto and hereto and any other documents or agreements
executed in connection with the transactions contemplated hereunder.
“Transfer
Agent” means Transhare Corporation, the current transfer agent of the Company, with a mailing address of Bayside Center 1, 17755
North U.S. Highway 19, Suite #140, Clearwater, FL 33764, and any successor transfer agent of the Company.
“Warrant” shall have the meaning ascribed
to such term in Section 2.4.
ARTICLE II.
PURCHASE AND SALE
2.1 Closing.
On the Closing Date, upon the terms and subject to the conditions set forth herein, substantially concurrent with the execution and
delivery of this Agreement by the parties hereto, the Company agrees to sell, and the Purchasers, severally and not jointly, agree
to purchase, an aggregate of 15,000,000 Shares, at a price per share of $0.15, for aggregate consideration of $2,250,000. Each
Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser shall be made available
for “Delivery Versus Payment” settlement with the Company or its designee. The Company shall deliver to each Purchaser
its respective Shares, and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the
Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Closing shall occur at such
location or locations as the parties shall mutually agree. Settlement of the Shares shall occur via “Delivery Versus
Payment” (“DVP”) (i.e. the Company shall deliver the Shares and Warrants to such Purchaser on or before the
Closing Date and, upon receipt, the Purchaser shall wire its Subscription Amount to an account designated in writing by the
Company.)
2.2
Deliveries.
(a) On
or prior to the Closing Date, the Company shall deliver or cause to be delivered to each Purchaser the following:
(i)
this Agreement with all exhibits and schedules thereto duly executed by the Company;
(ii) subject
to the last sentence of Section 2.1, the Company shall have provided each Purchaser with the Company’s wire instructions, on Company
letterhead and executed by the Chief Executive Officer or Chief Financial Officer; and
(iii) subject
to the last sentence of Section 2.1, a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to deliver
to the Purchaser Shares equal to such Purchaser’s Subscription Amount divided by the Per Share Purchase Price, registered in the
name of such Purchaser.
(b) On
or prior to the Closing Date, each Purchaser shall deliver or cause to be delivered to the Company the following:
(i)
this Agreement with all exhibits and schedules thereto duly executed by such Purchaser; and
(ii) such
Purchaser’s Subscription Amount, which shall be made available for “Delivery Versus Payment” settlement with the Company
or its designee.
2.3
Closing Conditions.
(a) The
obligations of the Company hereunder in connection with the Closing are subject to the following conditions being met:
(i) the
accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect,
in all respects) on the Closing Date of the representations and warranties of the Purchasers contained herein (unless as of a specific
date therein in which case they shall be accurate as of such date);
(ii) all
obligations, covenants and agreements of each Purchaser required to be performed at or prior to the Closing Date shall have been performed;
and
(iii)
the delivery by each Purchaser of the items set forth in Section 2.2(b) of this Agreement.
(b) The
respective obligations of the Purchasers hereunder in connection with the Closing are subject to the following conditions being met:
(i) the
accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect,
in all respects) when made and on the Closing Date of the representations and warranties of the Company contained herein (unless as of
a specific date therein in which case they shall be accurate as of such date);
(ii) all
obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed;
(iii)
the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement; and
(iv)
there shall have been no Material Adverse Effect with respect to the Company since the date hereof.
2.4 Stock
Warrants. In consideration of entering into this Agreement, the Company will, simultaneously with the execution of this Agreement,
issue a Warrant to each Purchaser granting the Purchaser the right to purchase up to 200% of the number of Shares being purchased by the
Purchaser hereunder. The Warrant shall have an Exercise Price of $0.20 per share, with a term of five (5) years. The form of such Warrant
is attached to this Agreement as Exhibit A, “Form of a Warrant.” The number and purchase price of Shares shall be subject to
adjustment as provided in Section 7 of the Warrant.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1 Representations
and Warranties of the Company. Except as set forth in the Disclosure Schedules, which Disclosure Schedules shall be deemed a part
hereof and shall qualify any representation or otherwise made herein to the extent of the disclosure contained in the corresponding section
of the Disclosure Schedules, the Company hereby makes the following representations and warranties to each Purchaser:
(a) Organization
and Qualification. The Company is an entity duly incorporated or otherwise organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation or organization, with the requisite power and authority to own and use its properties
and assets and to carry on its business as currently conducted. The Company is not in violation nor default of any of the provisions of
its respective certificate or articles of incorporation, bylaws or other organizational or charter documents. The Company is duly qualified
to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business
conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing,
as the case may be, would not have or reasonably be expected to result in: (i) a material adverse effect on the legality, validity or
enforceability of any Transaction Document, (ii) a material adverse effect on the results of operations, assets, business, prospects or
condition (financial or otherwise) of the Company, or (iii) a material adverse effect on the Company’s ability to perform in any
material respect on a timely basis its obligations under any Transaction Document (any of (i), (ii) or (iii), a “Material Adverse
Effect”) and, except as disclosed in the SEC Reports or in Schedule 3.1(a), no Proceeding has been instituted in any such jurisdiction
revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification.
(b) Authorization;
Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated
by this Agreement and each of the other Transaction Documents and otherwise to carry out its obligations hereunder and thereunder. The
execution and delivery of this Agreement and each of the other Transaction Documents by the Company and the consummation by it of the
transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of the Company and no further
action is required by the Company, the Board of Directors or the Company’s shareholders in connection herewith or therewith other
than in connection with the Required Approvals. This Agreement and each other Transaction Document to which the Company is a party has
been (or upon delivery will have been) duly executed by the Company and, when delivered in accordance with the terms hereof and thereof,
will constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except (i)
as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies, and (iii) insofar as indemnification and contribution provisions may be limited
by applicable law.
(c) No
Conflicts. The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to which
it is a party, the issuance and sale of the Shares and the consummation by it of the transactions contemplated hereby and thereby do
not and will not (i) conflict with or violate any provision of the Company’s certificate or articles of incorporation, bylaws
or other organizational or charter documents, or (ii) conflict with, or constitute a default (or an event that with notice or lapse
of time or both would become a default) under, result in the creation of any Lien upon any of the properties or assets of the
Company, or give to others any rights of termination, amendment, anti-dilution or similar adjustments, acceleration or cancellation
(with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company
debt or otherwise) or other understanding to which the Company is a party or by which any property or asset of the Company is bound
or affected, or (iii) subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation, order,
judgment, injunction, decree or other restriction of any court or governmental authority to which the Company is subject (including
federal and state securities laws and regulations), or by which any property or asset of the Company is bound or affected; except in
the case of each of clauses (ii) and (iii), such as would not have or reasonably be expected to result in a Material Adverse
Effect.
(d) Filings,
Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any notice to,
or make any filing or registration with, any court or governmental authority or other Person in connection with the execution, delivery
and performance by the Company of the Transaction Documents, other than any filings as are required to be made under applicable United
States federal and state securities laws (the “Required Approvals”).
(e) Issuance
of the Shares; Registration. The Shares are duly authorized and, when issued and paid for in accordance with the applicable Transaction
Documents, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company. The Company
has reserved from its duly authorized share capital the number of shares of Ordinary Shares issuable pursuant to this Agreement.
(f) Capitalization.
The capitalization of the Company as of the end of the period covered by its most recently filed periodic report under the Exchange Act
was set forth in such periodic report. Except as set forth in Schedule 3.1(f), the Company has not issued any securities since its most
recently filed periodic report under the Exchange Act, other than pursuant to the exercise of employee stock options under the Company’s
stock option plans, the issuance of shares of Ordinary Shares to employees pursuant to the Company’s employee stock purchase plans
and pursuant to the conversion and/or exercise of Ordinary Shares Equivalents outstanding as of the date of the most recently filed periodic
report under the Exchange Act. No Person has any right of first refusal, preemptive right, right of participation, or any similar right
to participate in the transactions contemplated by the Transaction Documents. Except as set forth in Schedule 3.1(f), except for options
granted under the Company’s stock option plans, and other than pursuant to the conversion and/or exercise of Ordinary Shares Equivalents
outstanding disclosed in the Company’s SEC Reports, there are no outstanding options, warrants, scrip rights to subscribe to, calls
or commitments of any character whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable
for, or giving any Person any right to subscribe for or acquire, any shares of Ordinary Shares, or contracts, commitments, understandings
or arrangements by which the Company is or may become bound to issue additional shares of Ordinary Shares or Ordinary Shares Equivalents.
The issuance and sale of the Shares will not obligate the Company or to issue shares of Ordinary Shares or other securities to any Person
(other than the Purchasers). Except as set forth in Schedule 3.1(f), there are no outstanding securities or instruments of the Company
with any provision that adjusts the exercise, conversion, exchange or reset price of such security or instrument upon an issuance of securities
by the Company. There are no outstanding securities or instruments of the Company that contain any redemption or similar provisions, and
there are no contracts, commitments, understandings or arrangements by which the Company is or may become bound to redeem a security of
the Company. The Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar
plan or agreement. All of the outstanding shares of share capital of the Company are duly authorized, validly issued, fully paid and nonassessable,
have been issued in compliance with all federal and state securities laws, and none of such outstanding shares was issued in violation
of any preemptive rights or similar rights to subscribe for or purchase securities. No further approval or authorization of any shareholder,
the Board of Directors or others is required for the issuance and sale of the Shares. There are no shareholder agreements, voting agreements
or other similar agreements with respect to the Company’s share capital to which the Company is a party or, to the knowledge of
the Company, between or among any of the Company’s stockholders.
(g) SEC
Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required to
be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the
two years preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material)
(the foregoing materials being collectively referred to herein as the “SEC Reports”) on a timely basis or has
received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension.
As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the
Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The financial statements of the Company included in the SEC Reports comply
in all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect
thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with United States generally
accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”), except as may
be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not
contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company as of and
for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited
statements, to normal, immaterial, year- end audit adjustments.
(h) Material
Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included within
the SEC Reports, except as set forth in the SEC Reports, (i) there has been no event, occurrence or development that has had or that could
reasonably be expected to result in a Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent or otherwise)
other than (A) trade payables and accrued expenses incurred in the ordinary course of business consistent with past practice and (B) liabilities
not required to be reflected in the Company’s financial statements pursuant to GAAP or disclosed in filings made with the Commission,
(iii) the Company has not altered its method of accounting, (iv) the Company has not declared or made any dividend or distribution of
cash or other property to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its share
capital and (v) the Company has not issued any equity securities to any officer, director or Affiliate, except pursuant to existing Company
stock option plans. The Company does not have pending before the Commission any request for confidential treatment of information. Except
for the issuance of the Shares contemplated by this Agreement, no event, liability, fact, circumstance, occurrence or development has
occurred or exists or is reasonably expected to occur or exist with respect to the Company that would be required to be disclosed by the
Company under applicable securities laws at the time this representation is made or deemed made that has not been publicly disclosed at
least 1 Trading Day prior to the date that this representation is made.
(i) Litigation.
Except as set forth in the SEC Reports and in Schedule 3.1(i), there is no action, suit, inquiry, notice of violation, proceeding or investigation
pending or, to the knowledge of the Company, threatened against or affecting the Company, before or by any court, arbitrator, governmental
or administrative agency or regulatory authority (federal, state, county, local or foreign) (collectively, an “Action”)
that (i) adversely affects or challenges the legality, validity or enforceability of any of the Transaction Documents or the Shares or
(ii) could, if there were an unfavorable decision, have or reasonably be expected to result in a Material Adverse Effect. Except as set
forth in the SEC Reports and in Schedule 3.1(i), neither the Company nor, to the Company’s knowledge, any director or officer thereof,
is or has been the subject of any Action involving a claim of violation of or liability under federal or state securities laws or a claim
of breach of fiduciary duty that could, if there were an unfavorable decision, have or reasonably be expected to result in a Material
Adverse Effect. Except as set forth in Schedule 3.1(i), to the knowledge of the Company, there is not pending or contemplated, any investigation
by the Commission involving the Company or any current or former director or officer of the Company. The Commission has not issued any
stop order or other order suspending the effectiveness of any registration statement filed by the Company under the Exchange Act or the
Securities Act.
(j) Certain
Fees. No brokerage or finder’s fees or commissions are or will be payable by the Company to any broker, financial advisor or
consultant, finder, placement agent, investment banker, bank or other Person with respect to the transactions contemplated by the Transaction
Documents. The Purchasers shall have no obligation with respect to any fees or with respect to any claims made by or on behalf of other
Persons for fees of a type contemplated in this Section that may be due in connection with the transactions contemplated by the Transaction
Documents.
(k) Registration
Rights. No Person has any right to cause the Company to effect the registration of any securities of the Company under the Securities
Act. The Shares, Warrants and Shares underlying the Warrants are registered for issuance to the Purchasers under the Securities Act on
the Registration Statement, but no registration rights of any kind are otherwise granted to the Purchasers under the Transaction Documents.
(l) Disclosure.
Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, the Company confirms
that neither it nor any other Person acting on its behalf has provided any of the Purchasers or their agents or counsel with any information
that it believes constitutes or might constitute material, non-public information which is not disclosed in the SEC Reports. The Company
understands and confirms that the Purchasers will rely on the foregoing representation in effecting transactions in securities of the
Company. All of the disclosure furnished by or on behalf of the Company to the Purchasers regarding the Company, their respective businesses
and the transactions contemplated hereby, including any Disclosure Schedules to this Agreement and the SEC Reports, is, to the best knowledge
of the Company, true and correct and does not contain any untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. The press releases
disseminated by the Company during the twelve months preceding the date of this Agreement taken as a whole with the SEC Reports do not
contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were made and when made, not misleading. The Company acknowledges
and agrees that no Purchaser makes or has made any representations or warranties with respect to the transactions contemplated hereby
other than those specifically set forth in Section 3.2 hereof.
(m) Legend.
Any certificate representing Shares sold to an Affiliate of the Company shall be endorsed with a legend required to be placed thereon
by applicable federal or state securities laws and the following legend “HEDGING TRANSACTIONS MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE
WITH THE SECURITIES ACT.”
The Purchaser consents to the Company
making a notation in its records or giving instructions to the transfer agent of the Company in order to implement the restrictions on
transfer of the Shares set forth in this Section 3.1(m).
3.2 Representations
and Warranties of the Purchasers. Each Purchaser, for itself and for no other Purchaser, hereby represents and warrants as of the
date hereof and as of the Closing Date to the Company as follows (unless as of a specific date therein, in which case they shall be accurate
as of such date):
(a) Organization;
Authority. Such Purchaser is either an individual or an entity duly incorporated or formed, validly existing, and in good standing
under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership limited liability company
or similar power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents and otherwise
to carry out its obligations hereunder and thereunder. The execution and delivery of the Transaction Documents and performance by such
Purchaser of the transactions contemplated by the Transaction Documents have been duly authorized by all necessary corporate, partnership,
limited liability company or similar action, as applicable, on the part of such Purchaser. Each Transaction Document to which it is a
party has been duly executed by such Purchaser, and when delivered by such Purchaser in accordance with the terms hereof, will constitute
the valid and legally binding obligation of such Purchaser, enforceable against it in accordance with its terms, except: (i) as limited
by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable
law.
(b)
Reserved.
(c)
Reserved.
(d) Foreign
Investor Compliance. Such Purchaser hereby represents that he or she or it has satisfied itself as to the full observance by the Purchaser
of the laws of its jurisdiction applicable to the Purchaser in connection with the purchase of the Shares or the execution and delivery
by the Purchaser of this Agreement and the Transaction Documents, including (i) the legal requirements within its jurisdiction for the
purchase of the Shares, (ii) any foreign exchange restrictions applicable to the 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 may be relevant to the Purchaser’s purchase,
holding, redemption, sale, or transfer of the Shares. The Purchaser’s subscription and payment for, and continued beneficial ownership
of, the Shares will not violate any securities law or other laws of the Purchaser’s jurisdiction applicable to the Purchaser.
(e)
Reserved.
(f)
Reserved.
(g) Access
to Information. Such Purchaser acknowledges that it has had the opportunity to review the Transaction Documents (including all exhibits
and schedules thereto) and the SEC Reports and has been afforded, (i) the opportunity to ask such questions as it has deemed necessary
of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering of the Shares and
the merits and risks of investing in the Shares; (ii) access to information about the Company and its financial condition, results of
operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; (iii) the opportunity to
obtain such additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary
to make an informed investment decision with respect to the investment; and (iv) the opportunity to consult such professionals, including
such Purchaser’s counsel, as such Purchaser deemed fit. No representations, assurances or warranties have been made to such Purchaser,
or any of his advisers or affiliates, by the Company or by any of its respective officers, directors, agents, employees or Affiliates,
nor anyone else on their behalf, concerning, among others, the future profitability of the Company or the Purchaser’s investment
in it, and in entering into this transaction such Purchaser is not relying upon any information, other than the results of his, or his
advisers’ or Affiliates’, own independent investigation.
(h)
Reserved.
ARTICLE IV.
OTHER AGREEMENTS OF THE PARTIES
4.1 Securities
Laws Disclosure; Publicity. The Company shall (a) by the Disclosure Time, issue a press release disclosing the material terms of the
transactions contemplated hereby, and (b) file a Current Report on Form 6-K, including the Transaction Documents as exhibits thereto,
with the Commission within the time required by the Exchange Act. From and after the issuance of such press release, the Company represents
to the Purchasers that it shall have publicly disclosed all material, non-public information delivered to any of the Purchasers by the
Company, or any of its respective officers, directors, employees or agents in connection with the transactions contemplated by the Transaction
Documents. In addition, effective upon the issuance of such press release, the Company acknowledges and agrees that any and all confidentiality
or similar obligations under any agreement, whether written or oral, between the Company or any of its respective officers, directors,
agents, employees or Affiliates on the one hand, and any of the Purchasers or any of their Affiliates on the other hand, shall terminate.
The Company and each Purchaser shall consult with each other in issuing any other press releases with respect to the transactions contemplated
hereby, and neither the Company nor any Purchaser shall issue any such press release nor otherwise make any such public statement without
the prior consent of the Company, with respect to any press release of any Purchaser, or without the prior consent of each Purchaser,
with respect to any press release of the Company, which consent shall not unreasonably be withheld or delayed, except if such disclosure
is required by law, in which case the disclosing party shall promptly provide the other party with prior notice of such public statement
or communication. Notwithstanding the foregoing, the Company shall not publicly disclose the name of any Purchaser, or include the name
of any Purchaser in any filing with the Commission or any regulatory agency or Trading Market, without the prior written consent of such
Purchaser, except (a) as required by federal securities law in connection with the filing of final Transaction Documents with the Commission
and (b) to the extent such disclosure is required by law or Trading Market regulations, in which case the Company shall provide the Purchasers
with notice of such disclosure permitted under this sub-clause (b).
4.2 Non-Public
Information. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents,
which shall be disclosed pursuant to Section 4.1, the Company covenants and agrees that neither it, nor any other Person acting on its
behalf will provide any Purchaser or its agents or counsel with any information that constitutes, or the Company reasonably believes constitutes,
material non-public information, unless prior thereto such Purchaser shall have consented to the receipt of such information and agreed
with the Company to keep such information confidential. The Company understands and confirms that each Purchaser shall be relying on the
foregoing covenant in effecting transactions in securities of the Company. To the extent that any notice provided pursuant to any Transaction
Document constitutes, or contains, material, non-public information regarding the Company, the Company shall simultaneously file such
notice with the Commission pursuant to a Current Report on Form 6-K. The Company understands and confirms that each Purchaser shall be
relying on the foregoing covenant in effecting transactions in securities of the Company.
4.3 Use
of Proceeds. The Company currently intends to use the net proceeds from the sale of the Shares hereunder for general corporate and
working capital purposes.
4.4 Certain
Transactions and Confidentiality. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it nor
any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or sales, including Short Sales
of any of the Company’s securities during the period commencing with the execution of this Agreement and ending at such time that
the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section
4.1. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated
by this Agreement are publicly disclosed by the Company pursuant to the initial press release as described in Section 4.1, such Purchaser
will maintain the confidentiality of the existence and terms of this transaction and the information included in the Disclosure Schedules.
In the case of a Purchaser that is a multi- managed investment vehicle whereby separate portfolio managers manage separate portions of
such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers
managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of
assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Agreement.
4.5 Registration
under the Securities Act. The Shares, the Warrants and the Shares underlying the Warrants are registered under the Securities Act
on the Registration Statement for issuance to the Purchasers, and when issued and paid for as contemplated hereby, such Shares and Warrants
will be freely tradable under the Securities Act by Purchasers who are not Affiliates of the Company. Each Purchaser represents and warrants
that they have read the Registration Statement, the Prospectus which forms a part thereof, and all supplements thereto, and will comply
with the “plan of distribution” set forth therein and all legal obligations in connection with the sale of the Shares, the
Warrants and the Shares underlying the Warrants.
ARTICLE V.
MISCELLANEOUS
5.1 Termination.
This Agreement may be terminated by the Company or any Purchaser, as to such Purchaser’s obligations hereunder only and without
any effect whatsoever on the obligations between the Company and the other Purchasers, by written notice to the other party(ies), if the
Closing has not been consummated on or before the fifth (5th) Trading Day following the date hereof.
5.2 Fees
and Expenses. Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay the fees and expenses
of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation,
preparation, execution, delivery and performance of this Agreement. The Company shall pay all Transfer Agent fees (including, without
limitation, any fees required for same-day processing of any instruction letter delivered by the Company), stamp taxes and other taxes
and duties levied in connection with the delivery of any Shares to the Purchasers.
5.3 Entire
Agreement. The Transaction Documents, together with the exhibits and schedules thereto, contain the entire understanding of the parties
with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings, oral or written, with respect
to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules.
5.4 Notices.
Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall
be deemed given and effective on the earliest of: (a) the time of transmission, if such notice or communication is delivered via facsimile
at the facsimile number or email attachment at the email address as set forth on the signature pages attached hereto at or prior to 5:30
p.m. (New York City time) on a Trading Day, (b) the next Trading Day after the time of transmission, if such notice or communication is
delivered via facsimile at the facsimile number or email attachment at the email address as set forth on the signature pages attached
hereto on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (c) the second (2nd)
Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service or (d) upon actual receipt
by the party to whom such notice is required to be given. The address for such notices and communications shall be as set forth on the
signature pages attached hereto. To the extent that any notice provided pursuant to any Transaction Document constitutes, or contains,
material, non-public information regarding the Company, the Company shall simultaneously file such notice with the Commission pursuant
to a Current Report on Form 6-K.
5.5 Amendments;
Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed, in
the case of an amendment, by the Company and Purchasers which purchased at least 50.1% in interest of the Shares based on the initial
Subscription Amounts hereunder or, in the case of a waiver, by the party against whom enforcement of any such waived provision is sought.
No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing
waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall
any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right. Any amendment
effected in accordance with this Section 5.5 shall be binding upon each Purchaser and holder of Shares and the Company.
5.6 Headings.
The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any
of the provisions hereof.
5.7 Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns.
No Purchaser may assign this Agreement or any rights or obligations hereunder without the prior written consent of the Company.
5.8 No
Third-Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective successors and permitted
assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person.
5.9 Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall be governed
by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts
of law thereof. Each party agrees that all legal Proceedings concerning the interpretations, enforcement and defense of the transactions
contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto or its respective affiliates,
directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts
sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting
in the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably
waives, and agrees not to assert in any Action or Proceeding, any claim that it is not personally subject to the jurisdiction of any such
court, that such Action or Proceeding is improper or is an inconvenient venue for such Proceeding. Each party hereby irrevocably waives
personal service of process and consents to process being served in any such Action or Proceeding by mailing a copy thereof via registered
or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this
Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein
shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If any party shall commence an Action
or Proceeding to enforce any provisions of the Transaction Documents, then the prevailing party in such Action or Proceeding shall be
reimbursed by the non-prevailing party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such Action or Proceeding.
5.10
Survival. The representations and warranties contained herein shall survive the Closing and the delivery of the Shares.
5.11 Execution.
This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party and delivered to each other party, it being understood that
the parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery
of a “.pdf” format data file or any electronic signature complying with the U.S. federal ESIGN Act of 2000, the Uniform Electronic
Transactions Act, or other applicable law (e.g., www.docusign.com), such signature shall create a valid and binding obligation of the
party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile, “.pdf,”
or electronic signature page were an original thereof.
5.12 Severability.
If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in
full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially
reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter
declared invalid, illegal, void or unenforceable.
5.13 Rescission
and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) any of
the other Transaction Documents, whenever any Purchaser exercises a right, election, demand or option under a Transaction Document and
the Company does not timely perform its related obligations within the periods therein provided, then such Purchaser may rescind or withdraw,
in its sole discretion from time to time upon written notice to the Company, any relevant notice, demand or election in whole or in part
without prejudice to its future actions and rights.
5.14 Replacement
of Shares. If any certificate or instrument evidencing any Shares is mutilated, lost, stolen or destroyed, the Company shall issue
or cause to be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation), or in lieu of and substitution
therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to the Company of such loss, theft
or destruction. The applicant for a new certificate or instrument under such circumstances shall also pay any reasonable third-party costs
(including customary indemnity) associated with the issuance of such replacement Shares.
5.15 Remedies.
In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of the Purchasers
and the Company will be entitled to specific performance under the Transaction Documents. The parties agree that monetary damages may
not be adequate compensation for any loss incurred by reason of any breach of obligations contained in the Transaction Documents and hereby
agree to waive and not to assert in any Action for specific performance of any such obligation the defense that a remedy at law would
be adequate.
5.16 Independent
Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser under any Transaction Document are several and
not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance or non-performance
of the obligations of any other Purchaser under any Transaction Document. Nothing contained herein or in any other Transaction Document,
and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to constitute the Purchasers as a partnership, an association,
a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way acting in concert or as a group
with respect to such obligations or the transactions contemplated by the Transaction Documents. Each Purchaser shall be entitled to independently
protect and enforce its rights including, without limitation, the rights arising out of this Agreement or out of the other Transaction
Documents, and it shall not be necessary for any other Purchaser to be joined as an additional party in any Proceeding for such purpose.
Each Purchaser has been represented by its own separate legal counsel in its review and negotiation of the Transaction Documents. The
Company has elected to provide all Purchasers with the same terms and Transaction Documents for the convenience of the Company and not
because it was required or requested to do so by any of the Purchasers. It is expressly understood and agreed that each provision contained
in this Agreement and in each other Transaction Document is between the Company and a Purchaser, solely, and not between the Company and
the Purchasers collectively and not between and among the Purchasers.
5.17 Saturdays,
Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted
herein shall not be a Trading Day, then such action may be taken or such right may be exercised on the next succeeding Trading Day.
5.19 Construction.
The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity to revise the Transaction Documents
and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall
not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition, each and every reference to
share prices and shares of Ordinary Shares in any Transaction Document shall be subject to adjustment for reverse and forward stock splits,
stock dividends, stock combinations and other similar transactions of the Ordinary Shares that occur after the date of this Agreement.
5.20 WAIVER
OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES
EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY
AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.
(Signature Pages Follow)
IN WITNESS WHEREOF, the parties hereto
have caused this Share Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated
above.
GOLDEN HEAVEN GROUP HOLDINGS LTD. |
Address For Notice: No. 8 Banhouhaichuan Rd, Xiqin
Town, Yanping District, Nanping City, Fujian
Province, China 353001
E-Mail: GROUP@JSYOULE.COM
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By: |
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Name: |
Jin Xu |
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Title: |
Chief Executive Officer and Chairman of the Board of Directors |
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With a copy to (which shall not constitute notice): |
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Hunter Taubman Fischer & Li LLC
950 3rd Ave 19th
floor,
New York, NY 10022
Attn: Ying Li, Esq.
[REMAINDER OF PAGE INTENTIONALLY
LEFT BLANK
SIGNATURE PAGE FOR PURCHASER FOLLOWS]
PURCHASER SIGNATURE PAGES TO THE
SHARE PURCHASE AGREEMENT
IN WITNESS WHEREOF, the undersigned have
caused this Share Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Gan Xiaochun
Signature of Authorized Signatory of
Purchaser: __________________________________
Email Address of Authorized Signatory: 2246529810@qq.com
Address for Notice to Purchaser: Unit 1, 9/F, Wo Hing Commercial
Building, 11 Wing Wo Street, Central, HONG KONG, China
Subscription Amount: $2,250,000
Shares: 15,000,000
Warrants: 30,000,000
[SIGNATURE PAGES CONTINUE]
DISCLOSURE SCHEDULES.
EXHIBIT A.
FORM OF A WARRANT.
Exhibit 10.2
THIS WARRANT AND THE SHARES ISSUABLE UPON EXERCISE
OF THIS WARRANT HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER (THE “SECURITIES ACT”).
GOLDEN HEAVEN GROUP HOLDINGS LTD.
WARRANT FOR THE PURCHASE OF SHARES
Date: August [*], 2024 |
Number of Shares:
30,000,000 |
For Value Received, Golden Heaven Group
Holdings Ltd., a company incorporated under the laws of Cayman Islands (the “Company”), with its principal office
located at No. 8 Haichuan Road, Banhou, Xiqin Town, Yanping District, Nanping City, Fujian Province, China, 353001, hereby certifies that Gan
Xiaochun (“Holder”), or its assigns, in partial consideration for entering into that certain Share Purchase Agreement,
dated as of August [*], 2024, by and between the Company and Holder, is entitled,
subject to the provisions of this Warrant, to purchase from the Company 30,000,000 fully paid and nonassessable shares of Class
A Ordinary Shares of the Company (the “Warrant Shares”).
Holder may purchase the
afore-mentioned number of shares of Warrant Shares of the Company at a purchase price per share (as appropriately adjusted pursuant to
Section 7 hereof) of $0.20 (the “Exercise Price”). The term “Class A Ordinary Shares”
shall mean the Class A Ordinary Shares of the Company, together with any other equity securities that may be issued by the Company in
substitution therefor as provided herein.
The number of shares of
Warrant Shares to be received upon the exercise of this Warrant and the price to be paid for a share of Warrant Shares are subject to
adjustment from time to time as hereinafter set forth.
Section 1. Exercise of Warrant. This
Warrant may be exercised in whole or in part on any business day prior to the Expiration Date (as hereinafter defined) by presentation
and surrender hereof to the Company at its principal office at the address set forth in the initial paragraph hereof (or at such other
address as the Company may hereafter notify Holder in writing) with the Purchase Form annexed hereto duly executed and accompanied by
proper payment of the Exercise Price in lawful money of the United States of America in the form of a check, subject to collection, or
in the form of an electronic transfer of funds, for the number of shares of Warrant Shares specified in the Purchase Form. If this Warrant
should be exercised in part only, the Company shall, upon surrender of this Warrant, execute and deliver a new Warrant evidencing the
rights of Holder thereof to purchase the balance of the Warrant Shares purchasable hereunder. Upon receipt by the Company of this Warrant
and such Purchase Form, together with proper payment of the Exercise Price, at the principal office of the Company, Holder shall be deemed
to be the holder of record of the Warrant Shares, notwithstanding that the stock transfer books of the Company shall then be closed or
that certificates representing such Warrant Shares shall not then be actually delivered to Holder, subject to applicable laws and regulations.
Section 2. Cashless Exercise. With
the consent of the Company or in the event of the Sale of the Company as defined in Section 10 herein, this Warrant may be exercised,
in whole or in part, by means of a “cashless exercise” by surrendering this Warrant (satisfactorily delivered in accordance
with Section 1 above) at the principal office of the Company together with the properly endorsed Purchase Form and notice of such election,
in which event the Company shall issue to Holder a number of shares of Warrant Shares computed using the following formula:
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Y (A-B) |
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A |
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Where |
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X = |
the number of shares of Warrant Shares to be issued to Holder |
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Y = |
the number of shares of Warrant Shares purchasable under the Warrant or, if only a portion of the Warrant is being exercised, the portion of the Warrant being canceled (at the date of such calculation) |
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A = |
the fair market value of one share of the Warrant Shares (at the date of such calculation) |
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B = |
Exercise Price (as adjusted to the date of such calculation) |
For purposes of this Section 2,
the fair market value of Warrant Shares on the date of calculation shall mean with respect to each share of Warrant Shares:
(a) if
Warrant Shares are traded on a securities exchange or The Nasdaq Stock Market or actively traded over-the-counter:
(1) if
Warrant Shares are traded on a securities exchange, the fair market value shall be deemed to be the average of the closing prices over
the ten (10) day period ending three days before the date of calculation;
(2) if
Warrant Shares are actively traded over-the-counter, the fair market value shall be deemed to be the average of the closing bid or sales
price (whichever is applicable) over the ten (10) day period ending three days before the date of calculation; or
(b) if
neither (1) nor (2) is applicable, the fair market value of Warrant Shares shall be at the highest price per share which the
Company could obtain on the date of calculation from a willing buyer (not a current employee or director) for shares of Warrant Shares
sold by the Company, from authorized but unissued shares, as determined in good faith by the Board of Directors of the Company, taking
into consideration, without limitation, the most recent sales of the Company’s shares.
(c) to
the extent this Warrant is not previously exercised, it shall be automatically exercised in accordance with this Section 2 prior
to any termination in accordance with Section 9.
Section 3. Reservation of Shares. The
Company hereby agrees that at all times there shall be reserved for issuance and delivery upon exercise of this Warrant all shares of
its Class A Ordinary Shares or other shares of share capital of the Company from time to time issuable upon exercise of this Warrant,
as applicable. All such shares shall be duly authorized and, when issued upon such exercise in accordance with the terms of this Warrant,
shall be validly issued, fully paid and nonassessable.
Section 4. Fractional Interest. The
Company will not issue a fractional share of Warrant Shares upon exercise of a Warrant. Instead, the Company will deliver its check for
the current market value of the fractional share. The current market value of a fraction of a share is determined as follows: multiply
the current fair market value (as determined as set forth in Section 2) of a full share by the fraction of a share and round the
result to the nearest cent.
Section 5. Transfers;
Assignment or Loss of Warrant.
(a) Subject
to the terms and conditions contained in Section 11 hereof, this Warrant and all rights hereunder are transferable in whole or in
part by Holder and any successor transferee; provided that prior to such transfer Holder shall give thirty (30) days prior written
notice of any such transfer to the Company, and the Company shall have the right to acquire the Warrant under the identical provisions
contained in such notice by giving Holder written notice within fifteen (15) days of receipt of such notice. The Company’s
failure to respond to said notice within said fifteen (15) days shall be deemed a waiver of this right of first refusal. The transfer
shall be recorded on the books of the Company upon receipt by the Company of the Transfer Notice annexed hereto at its principal offices
and the payment to the Company of all transfer taxes and other governmental charges imposed on such transfer.
(b) Holder shall not,
without obtaining the prior written consent of the Company, which consent shall not be unreasonably withheld, assign its interest in
this Warrant in whole or in part to any person or persons. Subject to the provisions of Section 5(a) and Section 12, upon
surrender of this Warrant to the Company or at the office of its stock transfer agent or warrant agent, with the Assignment Form
annexed hereto duly executed and funds sufficient to pay any transfer tax, the Company shall, without charge, execute and deliver a
new Warrant or Warrants in the name of the assignee or assignees named in such instrument of assignment (any such assignee will then
be a “Holder” for purposes of this Warrant) and, if Holder’s entire interest is not being assigned, in the name of
Holder, and this Warrant shall promptly be canceled.
(c) Upon
receipt of evidence satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant, and (in the case of loss,
theft or destruction) of indemnification satisfactory to the Company, and upon surrender and cancellation of this Warrant, if mutilated,
the Company shall execute and deliver a new Warrant of like tenor and date. In the event that this Warrant is lost, stolen, destroyed
or mutilated, Holder shall pay all reasonable attorneys’ fees and expenses incurred by the Company in connection with the replacement
of this Warrant and the issuance of a new Warrant.
Section 6. Rights of Holder. Holder
shall not, by virtue hereof, be entitled to any rights of a shareholder in the Company, either at law or equity, and the rights of Holder
are limited to those expressed in this Warrant. Nothing contained in this Warrant shall be construed as conferring upon Holder hereof
the right to vote or to consent or to receive notice as a shareholder of the Company on any matters or with respect to any rights whatsoever
as a shareholder of the Company. No dividends or interest shall be payable or accrued in respect of this Warrant or the interest represented
hereby or the Warrant Shares purchasable hereunder until, and only to the extent that, this Warrant shall have been exercised in accordance
with its terms.
Section 7. Adjustment of Exercise Price and Number of Shares. The
number and kind of securities purchasable upon the exercise of the Warrant and the Exercise Price shall be subject to adjustment from
time to time upon the occurrence of certain events, as follows:
(a) Share
Splits and Dividends. If outstanding shares of the Warrant Shares shall be subdivided into a greater number of shares,
the Exercise Price in effect immediately prior to such subdivision shall simultaneously with the effectiveness of such subdivision be
proportionately reduced. If outstanding shares of Warrant Shares shall be combined into a smaller number of shares, the Exercise Price
in effect immediately prior to such combination shall, simultaneously with the effectiveness of such combination, be proportionately increased.
When any adjustment is required to be made in the Exercise Price, the number of shares of Warrant Shares purchasable upon the exercise
of this Warrant shall be changed to the number determined by dividing (i) an amount equal to the number of shares issuable upon the
exercise of this Warrant immediately prior to such adjustment, multiplied by the Exercise Price in effect immediately prior to such adjustment,
by (ii) the Exercise Price in effect immediately after such adjustment.
(b) Reclassification,
Etc. In case there occurs any reclassification or change of the outstanding securities of the Company or of any
reorganization of the Company (or any other corporation the shares or securities of which are at the time receivable upon the exercise
of this Warrant) or any similar corporate reorganization on or after the date hereof, then and in each such case Holder, upon the
exercise hereof at any time after the consummation of such reclassification, change, or reorganization shall be entitled to receive, in
lieu of the shares or other securities and property receivable upon the exercise hereof prior to such consummation, the shares or other
securities or property to which such Holder would have been entitled upon such consummation if such Holder had exercised this Warrant
immediately prior thereto, all subject to further adjustment pursuant to the provisions of this Section 7.
(c) Adjustment
Certificate. When any adjustment is required to be made in the Warrant Shares or the Exercise Price pursuant to
this Section 7, the Company shall promptly mail to Holder a certificate setting forth (i) a brief statement of the facts requiring
such adjustment, (ii) the Exercise Price after such adjustment and (iii) the kind and amount of shares or other securities or
property into which this Warrant shall be exercisable after such adjustment.
Section 8. Termination. This
warrant (and the right to purchase securities upon exercise hereof) shall terminate upon the earliest to occur of the following (the
“Expiration Date”): (a) the expiration of the period of five (5) years as of the date of the Warrant set forth
above; or (b) a Sale of the Company (as defined below).
Section 9. Sale of the Company. The
Company will notify the Holder of any proposed Sale of the Company at least fifteen (15) days prior to the expected closing of the
Sale of the Company. As used herein, “Sale of the Company” means (i) any sale, transfer or other disposition
to another company of all or substantially all of the Company’s assets, (ii) the sale of shares of the Company resulting in
more than 50% of the voting power of the Company or of the surviving entity being vested in persons other than the persons who own 50%
or more of the voting power of the Company immediately prior to the effectiveness of such transaction, or (iii) a merger or consolidation
of the Company resulting in more than 50% of the voting power of the Company or of the surviving entity being vested in persons other
than the persons who own 50% or more of the voting power of the Company immediately prior to the effectiveness of such transaction.
Section 10. Transfer to Comply with the Securities Act of 1933. Each
Warrant and any securities issuable hereunder (the “Securities”) sold to an “affiliate” of the Company
(as defined in the Securities Act) (“Affiliate”) shall bear an appropriate legend under the Securities Act, and any certificate
for the Securities issued upon exercise of this Warrant, subject to the applicable provisions of the Securities Act of 1933, as amended
(the “Securities Act”) and the U.S. state “blue sky” laws, shall bear a legend substantially in the following
form:
“HEDGING TRANSACTIONS MAY NOT
BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.”
The Company is required to refuse to register
any transfer of this Warrant or the Securities underlying this Warrant not made in accordance with the provisions of the Securities Act
or pursuant to an available exemption from registration. Any certificate for any Securities issued at any time in exchange or substitution
for any certificate for any Securities bearing such legend shall also bear such legend unless, in the opinion of counsel for the Company,
the Securities represented thereby need no longer be subject to the restriction contained herein. The provisions of this Section 10
shall be binding upon all subsequent holders of certificates for Securities bearing the above legend and all subsequent holders of this
Warrant, if any.
Section 11. Representations and Covenants of Holder. This
Warrant has been entered into by the Company in reliance upon the following representations and covenants of Holder, which by its execution
hereof Holder hereby confirms:
(a) Reserved.
(b) Foreign
Investor. Holder hereby represents that he or she or it has satisfied itself as to the full observance by Holder of the laws
of its jurisdiction applicable to Holder in connection with the receipt of this Warrant or purchase of the Securities, including (i) the
legal requirements within its jurisdiction for the purchase of the Securities, (ii) any foreign exchange restrictions applicable to the
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 may be relevant to Holder’s holding of this Warrant and purchase, holding, redemption, sale, or transfer of the Securities.
Holder’s payment for, and continued beneficial ownership of, the Securities will not violate any securities or other laws of Holder’s
jurisdiction applicable to Holder.
(c) Disposition
of Holder’s Rights by Holders deemed Affiliates of the Company. In no event will any Holder who is an Affiliate of the
Company make a disposition of any of its rights to acquire the Securities, or of any Securities issued upon exercise of such rights, unless
and until (i) it shall have notified the Company of the proposed disposition and (ii) if requested by the Company, it shall
have furnished the Company with an opinion of counsel (which counsel may either be inside or outside counsel to Holder) reasonably
satisfactory to the Company and its counsel to the effect that (A) appropriate action necessary for compliance with the Securities
Act has been taken or (B) an exemption from the registration requirements of the Securities Act is available. Notwithstanding the
foregoing, the restrictions imposed upon the transferability of any of its rights to acquire the Securities, or of any Securities issued
on the exercise of such rights do not apply to transfers from the beneficial owner of any of the aforementioned securities to its nominee
or from such nominee to its beneficial owner, and shall terminate as to such security if and when (1) such security shall have been
effectively registered under the Securities Act and sold by the holder thereof in accordance with such registration, (2) such security
shall have been sold without registration in compliance with Regulation S under the Securities Act or (3) a letter shall have been
issued to Holder at its request by the staff of the Securities and Exchange Commission or a ruling shall have been issued to Holder at
its request by such Commission stating that no action shall be recommended by such staff or taken by such Commission, as the case may
be, if such security is transferred without registration under the Securities Act in accordance with the conditions set forth in such
letter or ruling, and such letter or ruling specifies that no subsequent restrictions on transfer are required. Whenever the restrictions
imposed hereunder shall terminate, as hereinabove provided, Holder or a holder of the Securities then outstanding as to which such restrictions
have terminated shall be entitled to receive from the Company, without expense to such holder, one or more new certificates for the Warrant
or for such Securities not bearing any restrictive legend.
(d) Reserved.
(e) Registration
of Securities. The Company filed a Securities Act Registration Statement on Form F-3 initially on June 4, 2024, which included the
Securities, and which was declared effective by the SEC on June 27, 2024. Such Registration Statement, as amended and supplemented from
time to time by the Company, the “Registration Statement.” The Securities are registered on the Registration Statement under
the Securities Act for issuance to the Holder, and when issued and paid for as contemplated hereby, such Securities will be freely tradable
under the Securities Act by Holders who are not Affiliates of the Company. Each Holder represents and warrants that they have read the
Registration Statement, the Prospectus which forms a part thereof, and all supplements thereto, and will comply with the “plan of
distribution” set forth therein and all legal obligations in connection with any sale of the Securities.
(f) Reserved.
Section 12. Saturdays,
Sundays and Holidays. If
the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall be a Saturday
or a Sunday or shall be a legal holiday in the State of New York, then such action may be taken or such right may be exercised on the
next succeeding day not a Saturday, Sunday or legal holiday in the State of New York.
Section 13. Issue Tax. The
issuance of certificates for Warrant Shares upon the exercise of the Warrant shall be made without charge to the holder of the Warrant
for any issue tax (other than any applicable income taxes) in respect thereof; provided, however, that the Company
shall not be required to pay any tax which may be payable in respect of any transfer involved in the issuance and delivery of any certificates
in a name other than that of the then Holder of the Warrant being exercised.
Section 14. Modification and Waiver. Neither
this Warrant nor any term hereof may be changed, waived, discharged or terminated other than by an instrument in writing signed by the
Company and by Holder.
Section 15. Notices. Unless
otherwise specified herein, any notice, request or other document required or permitted to be given or delivered to Holder or the Company
shall be given in writing and shall be deemed effectively given (i) upon personal delivery to the party to be notified, (ii) three
(3) days after deposit in the United States mail if sent by registered or certified mail, postage prepaid, or (iii) one (1) day
after deposit with an overnight courier, specifying next day delivery, with written verification of receipt. All communications shall
be sent to Holder at its address as shown on the books of the Company, or to the Company at the address indicated therefor in the first
paragraph of this Warrant.
Section 16. Descriptive Headings and Governing Law. The
descriptive headings of the several sections and paragraphs of this Warrant are inserted for convenience only and do not constitute a
part of this Warrant. This Warrant shall be construed and enforced in accordance with, and the rights of the parties shall be governed
by, the laws of the State of New York, without regard to its conflicts of laws principles. With respect to any claim arising out
of this Warrant, each party irrevocably submits to the exclusive jurisdiction of the courts of the State of New York and/or the United
States Federal Courts located in the Borough of Manhattan in The City of New York, and each party irrevocably waives any objection
which it may have at any time to the laying of venue of any suit, action or proceeding arising out of or relating hereto brought in any
such courts, irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in any
inconvenient forum and further irrevocably waives the right to object, with respect to such claim, suit, action or proceeding brought
in any such court, that such court does not have jurisdiction over such party, provided that service of process has been made by any
lawful means.
Section 17. Attorneys’
Fees. In any litigation, arbitration or court proceeding between the Company
and Holder relating hereto, the prevailing party shall be entitled to attorneys’ fees and expenses and all costs of proceedings
incurred in enforcing this Warrant.
Section 18. Survival. The
representations, warranties, covenants and conditions of the respective parties contained herein or made pursuant to this Warrant shall
survive the execution and delivery of this Warrant.
Section 19. Severability. In
the event any one or more of the provisions of this Warrant shall for any reason be held invalid, illegal or unenforceable, the remaining
provisions of this Warrant shall be unimpaired, and the invalid, illegal or unenforceable provision shall be replaced by a mutually
acceptable valid, legal and enforceable provision, which comes closest to the intention of the parties underlying the invalid, illegal
or unenforceable provision.
In Witness Whereof, the
Company has duly caused this Warrant to be signed by its duly authorized officer and to be dated as of the date first above written.
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Golden Heaven Group Holdings Ltd. |
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PURCHASE FORM
Dated_____________, _______
The undersigned hereby irrevocably
elects to exercise the within Warrant to purchase ________ shares of Class A Ordinary Shares and hereby makes payment
of $________ in payment of the exercise price thereof, either in cash or by surrender of shares in accordance with Section 2 hereof,
together with all applicable transfer taxes, if any.
In exercising its rights to purchase the _____________
of Class A Ordinary Shares of Golden Heaven Group Holdings Ltd., the undersigned hereby confirms and acknowledges the representations
and warranties made in Section 11 of the Warrant.
Please issue a certificate
or certificates representing said shares of ___________ Shares in the name of the undersigned or in such other name as is specified below.
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ASSIGNMENT FORM
Dated ___________ , ______
For Value Received,
__________________, a __________________, hereby sells, assigns and transfers unto
__________________________________________________________________________________(the “Assignee”),
(please type or print in block letters)
its right to purchase
up to shares of ______________ Shares
represented by this Warrant and does hereby irrevocably constitute and appoint __________________________ attorney, to transfer the
same on the books of the Company, with full power of substitution in the premises.
_____________________,
TRANSFER NOTICE
(To transfer or assign the foregoing Warrant,
execute this form and supply required information. Do not use this form to purchase shares.)
For Value Received,
the foregoing Warrant and all rights evidenced thereby are hereby transferred and assigned to:
Holder’s
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Holder’s Address |
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Note: |
The signature to this Transfer Notice must correspond with the name as it appears on the face of the Warrant, without alteration or enlargement or any change whatever. Officers of corporations and those acting in a fiduciary or other representative capacity should file proper evidence of authority to assign the foregoing Warrant. |
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