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 December 2023
Commission File Number: 001-38857
Bit
Origin Ltd
(Translation
of registrant’s name into English)
27F, Samsung Hub
3 Church Street Singapore 049483
T: 347-556-4747
(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.
This Report on Form 6-K is incorporated by reference into
the Registration Statement on Form F-3 of Bit Origin Ltd (the “Company”) (Registration Numbers 333-275602).
On December 7, 2023, the Company,
entered into a securities purchase agreement (the “Securities Purchase Agreement”) with an accredited investor (the “Buyer”)
relating to the issuance and sale of a senior secured convertible note (the “Note”) in the principal amount of $6,740,000
and warrants to purchase ordinary shares of the Company (the “Warrants” and such ordinary shares underlying the Warrants,
the “Warrant Shares”), at a purchase price of $6,127,334. Pursaunt to the Securities Purchase Agreement, the Buyer may elect
to purchase additional senior secured convertible note in the same form of the Note in an aggregagte principal amount shall not execeed
$18,000,000 in such additional closings. The Securities Purchase Agreement contains customary representations and warranties, conditions
to closing, termination provisions and indemnification obligations, including for liabilities under the Securities Act of 1933, as amended.
The initial closing of the Note in the principal amount of $6,740,000 and the Warrants will occur on the date the closing conditions have
been satisfied by the Company and the Buyer (the “Closing”). The number of Warrant Shares shall equal to 60% of the quotient
of (x) the original principal amount of the Note, divided by (y) the lower of (a) the average volume-weighted average price (“VWAP”)
VWAP during the five (5) consecutive trading day period ending and including the trading day immediately preceding the date of the Closing
or (b) the average VWAP during the five (5) consecutive trading day period ending and including the trading day immediately preceding
the date of the Securities Purchase Agreement. The Company also agreed to call and hold a special meeting of shareholders no later than
the 75th calendar day after the date of Closing to increase the authorized ordinary shares of the Company from 10,000,000 ordinary shares
to 250,000,000 ordinary shares.
In addition to the Securities
Purchase Agreement, on the same date, the Company entered into an equity purchase agreement (the “Equity Purchase Agreement”)
with the Buyer, pursuant to which the the Company agreed to purchase from the Buyer certain membership interests of a newly formed Delaware
limited liability company, Sonic Auspice DC LLC, at a purchase price of $750.
The Company plan to use (x)
at least $100,000 of the proceeds for marketing and investor relations purposes, (y) deposited $5,645,400 of the proceeds in Sonic Auspice
DC LLC, and (z) the remainder of the proceeds for general corporate purposes.
Note
The
Note is convertible at an initial conversion price equal to $15.00 per ordinary share (the “Conversion Price”), and
include anti-dilution adjustments in the event any ordinary shares or other equity
or equity equivalent securities payable in ordinary shares are granted, issued
or sold (or the Company enters into any agreement to grant, issue or sell), in each case, at a price less than the exercise price then
in effect, which automatically decreases the Conversion Price of the Note upon
the occurrence of such event; provided, that the Conversion Price may not be less
than $0.95, which equals 20% of the lower of the (i) the closing price of the ordinary shares immediately preceding the signing of the
binding agreement; or (ii) the average closing price of the ordinary shares for the five trading days immediately preceding the signing
of the binding agreement. The Holder of the Note will have the right to convert all or a portion of the Note at any time after the
date of issuance and prior to the maturity date, which is the thirty-six month anniversary from the date of issuance.
The Note has an interest of
the greater of (i) thirteen and a half percent (13.5% per annum) and (ii) the sum of (A) the Prime Rate (as defined in the Note) in effect
as of such date of determination and (B) five (5%) per annum; provided, that if such interest is being paid in ordinary shares, such interest
shall recalculated in connection with such issuance of ordinary shares at a deemed rate of the greater of (i) sixteen percent (16% per
annum) and (ii) the sum of (A) the Prime Rate in effect as of such date of determination and (B) seven and a half (7.5%) per annum. If
an event of default continues, such interest rate shall be adjusted on each trading day in which an event of default is continuing to
the sum of (x) the interest rate then in effect on such date of determination and (y) five percent (5.0%) per annum. The interest shall
be paid in ordinary shares as long as there is no equity condition failure; provided that the Company may, at its option, pay interest
in cash or in a combination of cash and ordinary shares.
The
Company may redeem the Notes in whole, and not in part, at its option, at any time prior to the maturity date, for a cash purchase price
of the aggregate principal amount of any Notes to be redeemed plus accrued and unpaid interest and late charges thereon (the “Conversion
Amount”) at a redemption premium of 108% (or 115% if the redemption occurs six months after the date of issuance of the Notes) of
the Conversion Amount. If an event default occurs, any holder of the Notes may require the Company to redeem all or any portion of the
Note at a redemption premium of 125% of the greater of (i) the Conversion Amount, and (ii) the equity value of our common stock underlying
the Notes calculated using the greatest closing sale price of our common stock on any trading day during the period commencing on the
date immediately preceding such event of default and ending on the date of such redemption.
The Note includes restrictive
covenants that, subject to specified exceptions, limit the ability of the Company and its subsidiaries to (a) incur debt or issue preferred
shares or disqualified stock; (b) make (i) dividends and distributions, (ii) redemptions and repurchases of equity, (iii) investments
and (iv) prepayments, redemptions and repurchases of subordinated debt; (c) incurring liens; (d) making asset sales; and (e) entering
into transactions with affiliates. In addition, the Company is required to maintain minimum unrestricted cash and cash equivalents of
$600,000.
The Note also includes customary
events of default after which the holder of the Notes may accelerate the maturity of the Notes to become due and payable immediately;
provided, however, that the Note will be automatically accelerated upon certain events of bankruptcy, insolvency and reorganization involving
the Company or any of its subsidiaries. Such events of default include: (i) failure to file the registration statement that registers
the ordinary shares underlying the Note and Warrants within 50 days from closing or failure to cause such registration statement effective
within 155 days from closing, (ii) the lapse in effectiveness of such registration statement for 5 consecutive days or for more than an
aggregate of 10 days in any 365-day period, with certain exceptions, (iii) the suspension or threatened suspension from trading for 5
consecutive trading days, (iv) failure to cure a conversion failure or a delivery failure within 5 trading days, (v) failure to reserve
the adequate number of our ordinary shares, for 10 consecutive days, (vi) failure to pay any amount of principal, interest, late charges
or other amounts when due under the Note or any other transaction document, with certain excecptions, (vii) failure to remove any restrictive
legend on the ordinary shares issued upon conversion of the Note and such failure remains uncured for at least 5 days, (vii) any default
under, redemption of or acceleration prior to maturity of at least an aggregate of $250,000 of indebtedness, (ix) certain events of bankruptcy,
insolvency and reorganization involving the Company, (x) a final judgment or judgments for the payment of money aggregating in excess
of $250,000 are rendered against the Company and/or any of its Subsidiaries and which judgments are not, within thirty (30) days after
the entry thereof, bonded, discharged, settled or stayed pending appeal, or are not discharged within thirty (30) days after the expiration
of such stay, (xi) certain defaults by the Company or any of its subsidiaries with respect to indebtedness for borrowed money of at least
$250,000, (xii) breach of any representations and warranties or covenants of any transaction documents, (xiii) a false or inaccurate certification
(including a false or inaccurate deemed certification) by the Company that either (A) the equity conditions are satisfied, (B) there has
been no equity conditions failure, or (C) as to whether any event of default has occurred, (xiv) any material adverse effect, (xv) any
material provision of any transaction document ceases to be valid and binding on or enforceable against the Company or any guarantor subsidiary
or the Company, and (xvi) any material damage to the collateral, which causes the cessation or substantial curtailment of revenue producing
activities at any facility of the Company or any subsidiary for more than 15 consecutive days.
Warrants
The
Warrants have a ten-year term and a $15.00 per share exercise price, and include anti-dilution adjustments in the event any ordinary
shares or other equity or equity equivalent securities payable in ordinary shares are
granted, issued or sold (or the Company enters into any agreement to grant, issue or sell), in each case, at a price less than the exercise
price then in effect, which automatically decreases the exercise price of the Warrants upon the occurrence of such event, and increases
the number of ordinary shares issuable upon exercise of the Warrants, such that
the aggregate exercise price of all Warrants remains the same before and after any such dilutive event. The Warrants also provide for
cashless exercise if the Warrants are not registered within 12 months after the closing.
Pursuant to the Securities
Purchase Agreement, the Company has agreed to enter into a registration rights agreement (the “Registration Rights Agreement”)
at the consummation of the transaction thereunder (the “Closing”) with the Buyer, which provides, subject to certain limitations,
the Buyer with certain registration rights for the ordinary shares issuable upon conversion of the Notes and exercise of the Warrants.
The Registration Rights Agreement requires the Company to prepare and file a registration statement with the U.S. Securities and Exchange
Commission (the “SEC”) within 45 days after the Closing to register the resale of the shares underlying the Notes and the
Warrants and cause such registration statement to be effective within 150 days after the Closing.
At the Closing, the Company
has also agreed to enter into a security and pledge agreement (the “Security and Pledge Agreement”) with the Buyer and certain
of the Company’s subsidiaries (the “Guarantor Subsidiaries”). The Security and Pledge Agreement granted a security interest
in favor of the Collateral Agent (as defined in the Security and Pledge Agreement) for the benefit of the Buyer in all personal property
and assets, with certain exceptions, of the Company and the Guarantor Subsidiaries and to perform the the Company’s obligations
under the Securities Purchase Agreement, the Note, the Registation Rights Agreement, the Security and Pledge Agreement and the other transaction
documents.
The Guarantor Subsidiaries
will also enter into a Guranty (the “Guaranty”) at the Closing with the Buyer, pursuant to which the Guarantor Subsidiaries
agree to guaranty the Company’s obligations under the Securities Purchase Agreement, the Note, the Registation Rights Agreement,
the Security and Pledge Agreement and the other transaction documents.
On December 8, 2023, the Company and
certain other members of the Sonic Auspice DC LLC entered into a second amended and restated limited liability company agreement (the
“Second Amended and Restated Limited Liability Company Agreement”). Pursunat to the Second Amended and Restated Limited Liability
Company Agreement, the Company will own 55% of the membership interest in Sonic Auspice DC LLC. Sonic Auspice DC LLC plans to build a
new crypto mining data center in the United States.
The
foregoing summaries of the Securities Purchase Agreement, the Notes, the Warrants, the Registration Rights Agreement, the Security and
Pledge Agreement, the Guaranty, the Equity Purchase Agreement and the Second Amended and Restated Limited Liability Company Agreement
do not purport to be complete and are subject to, and qualified in their entirety by, the full text of, as applicable, the exhibits to
this Current Report on Form 6-K, which are is incorporated herein by reference.
On
December 11, 2023, the Company published a press release titled “Bit Origin Ltd Secures $6.74 Million Investment Commitment
for a New Crypto Mining Data Center in the U.S.” A copy of the press release is furnished as Exhibit 99.1 to this Current Report
on Form 6-K and is incorporated herein by reference.
Exhibit Index
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| Date: December 12, 2023 |
BIT ORIGIN LTD |
| |
|
|
| |
By: |
/s/ Lucas Wang |
| |
Name: |
Lucas Wang |
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Title: |
Chief Executive Officer and Chairman of the Board |
Exhibit 4.1
Final Form
[FORM OF
SENIOR SECURED CONVERTIBLE NOTE]
NEITHER THE
ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE CONVERTIBLE HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED
FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL TO THE HOLDER (IF REQUESTED BY THE COMPANY), IN A FORM REASONABLY
ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD OR ELIGIBLE TO BE SOLD PURSUANT
TO RULE 144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA
FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES. ANY TRANSFEREE OF THIS NOTE SHOULD CAREFULLY REVIEW
THE TERMS OF THIS NOTE, INCLUDING SECTIONS 3(c)(iii) AND 20(a) HEREOF. THE PRINCIPAL AMOUNT REPRESENTED BY THIS NOTE AND,
ACCORDINGLY, THE SECURITIES ISSUABLE UPON CONVERSION HEREOF MAY BE LESS THAN THE AMOUNTS SET FORTH ON THE FACE HEREOF PURSUANT TO
SECTION 3(c)(iii) OF THIS NOTE.
THIS NOTE HAS
BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT (“OID”). PURSUANT TO TREASURY REGULATION §1.1275-3(b)(1). THE COMPANY WILL,
BEGINNING TEN DAYS AFTER THE ISSUANCE DATE OF THIS NOTE, PROMPTLY MAKE AVAILABLE TO THE HOLDER UPON REQUEST THE INFORMATION DESCRIBED
IN TREASURY REGULATION §1.1275-3(b)(1)(i). THE COMPANY MAY BE REACHED AT TELEPHONE NUMBER (347)556-4747.
Bit
Origin Ltd
Senior
Secured Convertible Note
| Issuance
Date: [●] 20__ |
Original Principal
Amount: U.S. $[●] |
FOR
VALUE RECEIVED, Bit Origin Ltd, a Cayman Islands exempted company (the “Company”), hereby promises to pay to the
order of [BUYER] or its registered assigns (“Holder”) the amount set forth above as the Original Principal Amount
(as reduced pursuant to the terms hereof pursuant to redemption, conversion or otherwise, the “Principal”) when due,
whether upon the Maturity Date, on any Amortization Date with respect to the Amortization Amount due on such Amortization Date (each
as defined below) or upon acceleration, redemption or otherwise (in each case in accordance with the terms hereof) and to pay interest
(“Interest”) on any outstanding Principal at the applicable Interest Rate (as defined below) from the date set forth
above as the Issuance Date (the “Issuance Date”) until the same becomes due and payable, whether upon the Maturity
Date, on any Amortization Date with respect to the Amortization Amount due on such Amortization Date or upon acceleration, conversion,
redemption or otherwise (in each case in accordance with the terms hereof). This Senior Secured Convertible Note (including all Senior
Secured Convertible Notes issued in exchange, transfer or replacement hereof, this “Note”) is one of an issue of Senior
Secured Convertible Notes issued pursuant to the Securities Purchase Agreement, dated as of December__, 2023 (the “Subscription
Date”), by and among the Company and the investors (the “Buyers”) referred to therein, as amended from time
to time (collectively, the “Notes”, and such other Senior Secured Convertible Notes, the “Other Notes”).
Certain capitalized terms used herein are defined in Section 33.
1. PAYMENTS
OF PRINCIPAL. On each Amortization Date, the Company shall pay to the Holder an amount equal to the Amortization Amount due on such
Amortization Date in accordance with Section 9 and such portion of the Principal hereunder included in such Amortization Amount
shall be satisfied upon the payment or conversion of such Amortization Amount (with any partial satisfaction (whether in cash or Ordinary
Shares hereunder, as applicable) of such Amortization Amount being applied last to any Principal included in such Amortization Amount).
On the Maturity Date, the Company shall pay to the Holder an amount in cash (excluding any amounts paid in Ordinary Shares on the Maturity
Date in accordance with Section 9) representing all outstanding Principal, accrued and unpaid Interest and accrued and unpaid Late
Charges (as defined in Section 26(c)) on such Principal and Interest. Other than as specifically permitted by this Note, the Company
may not prepay any portion of the outstanding Principal, accrued and unpaid Interest or accrued and unpaid Late Charges on Principal
and Interest, if any.
2. INTEREST;
INTEREST RATE.
(a) Interest
on this Note shall commence accruing on the Issuance Date and shall accrue on all outstanding principal amounts and shall be computed
on the basis of a 360-day year and twelve 30-day months and shall be payable in arrears on the first calendar day of each calendar quarter
(each, an “Interest Date”) with the first Interest Date being ________, 2024. Interest shall be payable on each Interest
Date, to the record holder of this Note on the applicable Interest Date, in Ordinary Shares (“Interest Shares”) so
long as there has been no Equity Conditions Failure; provided however, that the Company may, at its option following notice to the Holder,
pay Interest on any Interest Date in cash (“Cash Interest”) or in a combination of Cash Interest and Interest Shares.
The Company shall deliver a written notice (each, an “Interest Election Notice”) to each holder of the Notes on or
prior to the sixth (6th) Trading Day prior to the applicable Interest Date (the date such notice is delivered to all of the
holders of Notes, the “Interest Notice Date”) which notice (i) either (A) confirms that Interest to be paid
on such Interest Date shall be paid entirely in Interest Shares or (B) elects to pay Interest as Cash Interest or a combination
of Cash Interest and Interest Shares and specifies the amount of Interest that shall be paid as Cash Interest and the amount of Interest,
if any, that shall be paid in Interest Shares and (ii) certifies that there has been no Equity Conditions Failure. If an Equity
Conditions Failure has occurred as of the Interest Notice Date, then unless the Company has elected to pay such Interest as Cash Interest,
the Interest Election Notice shall indicate that unless the Holder waives the Equity Conditions Failure, the Interest shall be paid as
Cash Interest. Notwithstanding anything herein to the contrary, if no Equity Conditions Failure has occurred as of the Interest Notice
Date but an Equity Conditions Failure occurs at any time prior to the Interest Date, (A) the Company shall provide the Holder a
subsequent notice to that effect and (B) unless the Holder waives the Equity Conditions Failure, the Interest shall be paid in cash.
Interest to be paid on an Interest Date in Interest Shares shall be paid in a number of fully paid and nonassessable shares (rounded
to the nearest whole share in accordance with Section 3(a)) of Ordinary Shares equal to the quotient of (1) the amount of Interest
payable on such Interest Date less any Cash Interest paid and (2) the Interest Conversion Price in effect on the applicable Interest
Date.
(b) When
any Interest Shares are to be paid on an Interest Date, the Company shall (i) (A) provided that the Company’s transfer
agent (the “Transfer Agent”) is participating in the Depository Trust Company (“DTC”) Fast Automated
Securities Transfer Program (“FAST”), credit such aggregate number of Interest Shares to which the Holder shall be
entitled to the Holder’s or its designee’s balance account with DTC through its Deposit/Withdrawal at Custodian system, or
(B) if the Transfer Agent is not participating in FAST, issue and deliver on the applicable Interest Date, to the address set forth
in the register maintained by the Company for such purpose pursuant to the Securities Purchase Agreement or to such address as specified
by the Holder in writing to the Company at least two (2) Business Days prior to the applicable Interest Date, a certificate, registered
in the name of the Holder or its designee, for the number of Interest Shares to which the Holder shall be entitled and (ii) with
respect to each Interest Date, pay to the Holder, in cash by wire transfer of immediately available funds, the amount of any Cash Interest;
provided further, that, in the event of the Conversion Floor Price Condition, on the applicable Interest Date the Company shall also
deliver to the Holder the applicable Interest Floor Amount.
(c) Prior
to the payment of Interest on an Interest Date, Interest on this Note shall accrue at the Interest Rate on all outstanding principal
amounts and be payable by way of inclusion of the Interest in the Conversion Amount on each Conversion Date in accordance with Section 3(b)(i) or
upon any redemption in accordance with Section 13 or any required payment upon any Bankruptcy Event of Default. From and after the
occurrence and during the continuance of any Event of Default, the Interest Rate shall automatically be adjusted on each Trading Day
in which an Event of Default is continuing to the sum of (x) the Interest Rate then in effect on such date of determination and
(y) five percent (5.0%) per annum (the “Default Rate”). In the event that such Event of Default is subsequently
cured (and no other Event of Default then exists, including, without limitation, for the Company’s failure to pay such Interest
at the Default Rate on the applicable Interest Date), the adjustment referred to in the preceding sentence shall cease to be effective
as of the calendar day immediately following the date of such cure; provided that the Interest as calculated and unpaid at such increased
rate during the continuance of such Event of Default shall continue to apply to the extent relating to the days after the occurrence
of such Event of Default through and including the date of such cure of such Event of Default.
3. CONVERSION
OF NOTES. At any time after the date hereof, this Note shall be convertible into validly issued, fully paid and non-assessable Ordinary
Shares (as defined below), on the terms and conditions set forth in this Section 3.
(a) Conversion
Right. Subject to the provisions of Section 3(d), at any time or times on or after the date hereof, the Holder shall be entitled
to convert any portion of the outstanding and unpaid Conversion Amount (as defined below) into validly issued, fully paid and non-assessable
Ordinary Shares in accordance with Section 3(c), at the Conversion Rate (as defined below). The Company shall not issue any fraction
of an Ordinary Share upon any conversion. If the issuance would result in the issuance of a fraction of an Ordinary Share, the Company
shall round such fraction of an Ordinary Share up to the nearest whole share. The Company shall pay any and all transfer, stamp, issuance
and similar taxes, costs and expenses (including, without limitation, fees and expenses of the Transfer Agent (as defined below)) that
may be payable with respect to the issuance and delivery of Ordinary Shares upon conversion of any Conversion Amount.
(b) Conversion
Rate. The number of Ordinary Shares issuable upon conversion of any Conversion Amount pursuant to Section 3(a) shall be
determined by dividing (x) such Conversion Amount by (y) the Conversion Price (the “Conversion Rate”).
(i) “Conversion
Amount” means the sum of (x) portion of the Principal to be converted, redeemed or otherwise with respect to which this
determination is being made and (y) all accrued and unpaid Interest with respect to such portion of the Principal amount and accrued
and unpaid Late Charges with respect to such portion of such Principal and such Interest, if any.
(ii) “Conversion
Price” means, as of any Conversion Date or other date of determination, $15.00, subject to adjustment as provided herein.
(c) Mechanics
of Conversion.
(i) Optional
Conversion. To convert any Conversion Amount into Ordinary Shares on any date (a “Conversion Date”), the Holder
shall deliver (whether via electronic mail or otherwise), for receipt on or prior to 11:59 p.m., New York time, on such date, a copy
of an executed notice of conversion in the form attached hereto as Exhibit I (each, a “Conversion Notice”)
to the Company. If required by Section 3(c)(iii), within two (2) Trading Days following a conversion of this Note as aforesaid,
the Holder shall surrender this Note to a nationally recognized overnight delivery service for delivery to the Company (or an indemnification
undertaking with respect to this Note in the case of its loss, theft or destruction as contemplated by Section 20(b)). On or before
the first (1st) Trading Day following the date of receipt of a Conversion Notice, the Company shall transmit by electronic mail an acknowledgment,
in the form attached hereto as Exhibit II, of confirmation of receipt of such Conversion Notice and representation as to
whether such Ordinary Shares may then be resold pursuant to Rule 144 or an effective and available registration statement (each,
an “Acknowledgement”) to the Holder and the Transfer Agent which confirmation shall constitute an instruction to the
Transfer Agent to process such Conversion Notice in accordance with the terms herein. On or before the second (2nd) Trading Day following
the date on which the Company has received a Conversion Notice (or such earlier date as required pursuant to the 1934 Act or other applicable
law, rule or regulation for the settlement of a trade initiated on the applicable Conversion Date of such Ordinary Shares issuable
pursuant to such Conversion Notice) (the “Share Delivery Deadline”), the Company shall (1) provided that the
Transfer Agent is participating in FAST, credit such aggregate number of Ordinary Shares to which the Holder shall be entitled pursuant
to such conversion to the Holder’s or its designee’s balance account with DTC through its Deposit/Withdrawal at Custodian
system or (2) if the Transfer Agent is not participating in FAST, upon the request of the Holder, issue and deliver (via reputable
overnight courier) to the address as specified in the Conversion Notice, a certificate, registered in the name of the Holder or its designee,
for the number of Ordinary Shares to which the Holder shall be entitled pursuant to such conversion. If this Note is physically surrendered
for conversion pursuant to Section 3(c)(iii) and the outstanding Principal of this Note is greater than the Principal portion
of the Conversion Amount being converted, then the Company shall as soon as practicable and in no event later than two (2) Business
Days after receipt of this Note and at its own expense, issue and deliver to the Holder (or its designee) a new Note (in accordance with
Section 20(d)) representing the outstanding Principal not converted. The Person or Persons entitled to receive the Ordinary Shares
issuable upon a conversion of this Note shall be treated for all purposes as the record holder or holders of such Ordinary Shares on
the Conversion Date. In the event of a partial conversion of this Note pursuant hereto, the Principal amount converted shall be deducted
from the Amortization Amount(s) relating to the Amortization Date(s) as set forth in the applicable Conversion Notice. Notwithstanding
anything to the contrary contained in this Note or the Registration Rights Agreement, after the effective date of the Registration Statement
(as defined in the Registration Rights Agreement) and prior to the Holder’s receipt of the notice of a Grace Period (as defined
in the Registration Rights Agreement), the Company shall cause the Transfer Agent to deliver unlegended Ordinary Shares to the Holder
(or its designee) in connection with any sale of Registrable Securities (as defined in the Registration Rights Agreement) with respect
to which the Holder has entered into a contract for sale, and delivered a copy of the prospectus included as part of the particular Registration
Statement to the extent applicable, and for which the Holder has not yet settled.
(ii) Company’s
Failure to Timely Convert. If the Company shall fail, for any reason or for no reason, on or prior to the applicable Share Delivery
Deadline, either (I) if the Transfer Agent is not participating in FAST, to issue and deliver to the Holder (or its designee) a
certificate for the number of Ordinary Shares to which the Holder is entitled and register such Ordinary Shares on the Company’s
share register or, if the Transfer Agent is participating in FAST, to credit the balance account of the Holder or the Holder’s
designee with DTC for such number of Ordinary Shares to which the Holder is entitled upon the Holder’s conversion of this Note
(as the case may be) or (II) if the Registration Statement covering the resale of the Ordinary Shares that are the subject of the
Conversion Notice (the “Unavailable Conversion Shares”) is not available for the resale of such Unavailable Conversion
Shares and the Company fails to promptly, but in no event later than as required pursuant to the Registration Rights Agreement (x) so
notify the Holder and (y) deliver the Ordinary Shares electronically without any restrictive legend by crediting such aggregate
number of Ordinary Shares to which the Holder is entitled pursuant to such conversion to the Holder’s or its designee’s balance
account with DTC through its Deposit/Withdrawal At Custodian system (the event described in the immediately foregoing clause (II) is
hereinafter referred as a “Notice Failure” and together with the event described in clause (I) above, a “Conversion
Failure”), then, in addition to all other remedies available to the Holder, (1) the Company shall pay in cash to the Holder
on each day after such Share Delivery Deadline that the issuance of such Ordinary Shares is not timely effected an amount equal to 2%
of the product of (A) the sum of the number of Ordinary Shares not issued to the Holder on or prior to the Share Delivery Deadline
and to which the Holder is entitled, multiplied by (B) any trading price of the Ordinary Shares selected by the Holder in writing
as in effect at any time during the period beginning on the applicable Conversion Date and ending on the applicable Share Delivery Deadline
and (2) the Holder, upon written notice to the Company, may void its Conversion Notice with respect to, and retain or have returned
(as the case may be) any portion of this Note that has not been converted pursuant to such Conversion Notice, provided that the voiding
of a Conversion Notice shall not affect the Company’s obligations to make any payments which have accrued prior to the date of
such notice pursuant to this Section 3(c)(ii) or otherwise. In addition to the foregoing, if on or prior to the Share Delivery
Deadline either (A) if the Transfer Agent is not participating in FAST, the Company shall fail to issue and deliver to the Holder
(or its designee) a certificate and register such Ordinary Shares on the Company’s share register or, if the Transfer Agent is
participating in FAST, the Transfer Agent shall fail to credit the balance account of the Holder or the Holder’s designee with
DTC for the number of Ordinary Shares to which the Holder is entitled upon the Holder’s conversion hereunder or pursuant to the
Company’s obligation pursuant to clause (II) below or (B) a Notice Failure occurs, and if on or after such Share Delivery
Deadline the Holder acquires (in an open market transaction, stock loan or otherwise) Ordinary Shares corresponding to all or any portion
of the number of Ordinary Shares issuable upon such conversion that the Holder is entitled to receive from the Company and has not received
from the Company in connection with such Conversion Failure or Notice Failure, as applicable (a “Buy-In”), then, in
addition to all other remedies available to the Holder, the Company shall, within two (2) Business Days after receipt of the Holder’s
request and in the Holder’s discretion, either: (I) pay cash to the Holder in an amount equal to the Holder’s total
purchase price (including brokerage commissions, stock loan costs and other out-of-pocket expenses, if any) for the Ordinary Shares so
acquired (including, without limitation, by any other Person in respect, or on behalf, of the Holder) (the “Buy-In Price”),
at which point the Company’s obligation to so issue and deliver such certificate (and to issue such Ordinary Shares) or credit
the balance account of such Holder or such Holder’s designee, as applicable, with DTC for the number of Ordinary Shares to which
the Holder is entitled upon the Holder’s conversion hereunder (as the case may be) (and to issue such Ordinary Shares) shall terminate,
or (II) promptly honor its obligation to so issue and deliver to the Holder a certificate or certificates representing such Ordinary
Shares or credit the balance account of such Holder or such Holder’s designee, as applicable, with DTC for the number of Ordinary
Shares to which the Holder is entitled upon the Holder’s conversion hereunder (as the case may be) and pay cash to the Holder in
an amount equal to the excess (if any) of the Buy-In Price over the product of (x) such number of Ordinary Shares multiplied by
(y) the lowest Closing Sale Price of the Ordinary Shares on any Trading Day during the period commencing on the date of the applicable
Conversion Notice and ending on the date of such issuance and payment under this clause (II) (the “Buy-In Payment Amount”).
Nothing shall limit the Holder’s right to pursue any other remedies available to it hereunder, at law or in equity, including,
without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver
certificates representing Ordinary Shares (or to electronically deliver such Ordinary Shares) upon the conversion of this Note as required
pursuant to the terms hereof.
(iii) Registration;
Book-Entry. The Company shall maintain a register (the “Register”) for the recordation of the names and addresses
of the holders of each Note and the principal amount of the Notes held by such holders (the “Registered Notes”). The
entries in the Register shall be conclusive and binding for all purposes absent manifest error. The Company and the holders of the Notes
shall treat each Person whose name is recorded in the Register as the owner of a Note for all purposes (including, without limitation,
the right to receive payments of Principal and Interest hereunder) notwithstanding notice to the contrary. A Registered Note may be assigned,
transferred or sold in whole or in part only by registration of such assignment or sale on the Register. Upon its receipt of a written
request to assign, transfer or sell all or part of any Registered Note by the registered holder thereof, the Company shall record the
information contained therein in the Register and issue one or more new Registered Notes in the same aggregate principal amount as the
principal amount of the surrendered Registered Note to the designated assignee or transferee pursuant to Section 20, provided that
if the Company does not so record an assignment, transfer or sale (as the case may be) of all or part of any Registered Note within two
(2) Business Days of such a request, then the Register shall be automatically deemed updated to reflect such assignment, transfer
or sale (as the case may be). Notwithstanding anything to the contrary set forth in this Section 3, following conversion of any
portion of this Note in accordance with the terms hereof, the Holder shall not be required to physically surrender this Note to the Company
unless (A) the full Conversion Amount represented by this Note is being converted (in which event this Note shall be delivered to
the Company following conversion thereof as contemplated by Section 3(c)(i)) or (B) the Holder has provided the Company with
prior written notice (which notice may be included in a Conversion Notice) requesting reissuance of this Note upon physical surrender
of this Note. The Holder and the Company shall maintain records showing the Principal, Interest and Late Charges converted and/or
paid (as the case may be) and the dates of such conversions and/or payments (as the case may be) or shall use such other method, reasonably
satisfactory to the Holder and the Company, so as not to require physical surrender of this Note upon conversion. If the Company does
not update the Register to record such Principal, Interest and Late Charges converted and/or paid (as the case may be) and the dates
of such conversions and/or payments (as the case may be) within two (2) Business Days of such occurrence, then the Register shall
be automatically deemed updated to reflect such occurrence.
(iv) Pro
Rata Conversion; Disputes. In the event that the Company receives a Conversion Notice from more than one holder of Notes for the
same Conversion Date and the Company can convert some, but not all, of such portions of the Notes submitted for conversion, the Company,
subject to Section 3(d), shall convert from each holder of Notes electing to have Notes converted on such date a pro rata amount
of such holder’s portion of its Notes submitted for conversion based on the principal amount of Notes submitted for conversion
on such date by such holder relative to the aggregate principal amount of all Notes submitted for conversion on such date. In the event
of a dispute as to the number of Ordinary Shares issuable to the Holder in connection with a conversion of this Note, the Company shall
issue to the Holder the number of Ordinary Shares not in dispute and resolve such dispute in accordance with Section 25.
(d) Limitations
on Conversions. The Company shall not effect the conversion of any portion of this Note, and the Holder shall not have the right
to convert any portion of this Note pursuant to the terms and conditions of this Note and any such conversion shall be null and void
and treated as if never made, to the extent that after giving effect to such conversion, the Holder together with the other Attribution
Parties collectively would beneficially own in excess of 4.99% (the “Maximum Percentage”) of the Ordinary Shares outstanding
immediately after giving effect to such conversion. For purposes of the foregoing sentence, the aggregate number of Ordinary Shares beneficially
owned by the Holder and the other Attribution Parties shall include the number of Ordinary Shares held by the Holder and all other Attribution
Parties plus the number of Ordinary Shares issuable upon conversion of this Note with respect to which the determination of such sentence
is being made, but shall exclude Ordinary Shares which would be issuable upon (A) conversion of the remaining, nonconverted portion
of this Note beneficially owned by the Holder or any of the other Attribution Parties and (B) exercise or conversion of the unexercised
or nonconverted portion of any other securities of the Company (including, without limitation, any convertible notes or convertible preferred
shares or warrants, including, without limitation, the Warrants) beneficially owned by the Holder or any other Attribution Party subject
to a limitation on conversion or exercise analogous to the limitation contained in this Section 3(d). For purposes of this Section 3(d),
beneficial ownership shall be calculated in accordance with Section 13(d) of the 1934 Act. For purposes of determining the
number of outstanding Ordinary Shares the Holder may acquire upon the conversion of this Note without exceeding the Maximum Percentage,
the Holder may rely on the number of outstanding Ordinary Shares as reflected in (x) the Company’s most recent Annual Report
on Form 20-F, Report of Foreign Issuer on Form 6-K or other public filing with the SEC, as the case may be, (y) a more
recent public announcement by the Company or (z) any other written notice by the Company or the Transfer Agent, if any, setting
forth the number of Ordinary Shares outstanding (the “Reported Outstanding Share Number”). If the Company receives
a Conversion Notice from the Holder at a time when the actual number of outstanding Ordinary Shares is less than the Reported Outstanding
Share Number, the Company shall notify the Holder in writing of the number of Ordinary Shares then outstanding and, to the extent that
such Conversion Notice would otherwise cause the Holder’s beneficial ownership, as determined pursuant to this Section 3(d),
to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Ordinary Shares to be purchased pursuant
to such Conversion Notice. For any reason at any time, upon the written or oral request of the Holder, the Company shall within one (1) Business
Day confirm orally and in writing or by electronic mail to the Holder the number of Ordinary Shares then outstanding. In any case, the
number of outstanding Ordinary Shares shall be determined after giving effect to the conversion or exercise of securities of the Company,
including this Note, by the Holder and any other Attribution Party since the date as of which the Reported Outstanding Share Number was
reported. In the event that the issuance of Ordinary Shares to the Holder upon conversion of this Note results in the Holder and the
other Attribution Parties being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding
Ordinary Shares (as determined under Section 13(d) of the 1934 Act), the number of shares so issued by which the Holder’s
and the other Attribution Parties’ aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”)
shall be deemed null and void and shall be cancelled ab initio, and the Holder shall not have the power to vote or to transfer the Excess
Shares. Upon delivery of a written notice to the Company, the Holder may from time to time increase (with such increase not effective
until the sixty-first (61st) day after delivery of such notice) or decrease the Maximum Percentage to any other percentage
not in excess of 9.99% as specified in such notice; provided that (i) any such increase in the Maximum Percentage will not be effective
until the sixty-first (61st) day after such notice is delivered to the Company and (ii) any such increase or decrease
will apply only to the Holder and the other Attribution Parties and not to any other holder of Notes that is not an Attribution Party
of the Holder. For purposes of clarity, the Ordinary Shares issuable pursuant to the terms of this Note in excess of the Maximum Percentage
shall not be deemed to be beneficially owned by the Holder for any purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of
the 1934 Act. No prior inability to convert this Note pursuant to this paragraph shall have any effect on the applicability of the provisions
of this paragraph with respect to any subsequent determination of convertibility. The provisions of this paragraph shall be construed
and implemented in a manner otherwise than in strict conformity with the terms of this Section 3(d) to the extent necessary
to correct this paragraph (or any portion of this paragraph) which may be defective or inconsistent with the intended beneficial ownership
limitation contained in this Section 3(d) or to make changes or supplements necessary or desirable to properly give effect
to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Note.
(e) Right
of Alternate Conversion Upon an Event of Default.
(i) General.
Subject to Section 3(d), at any time after the occurrence of an Event of Default (regardless of whether such Event of Default has
been cured, or if the Company has delivered an Event of Default Notice to the Holder or if the Holder has delivered an Event of Default
Redemption Notice to the Company or otherwise notified the Company that an Event of Default has occurred), the Holder may, at the Holder’s
option, convert (each, an “Alternate Conversion” and, and the date of such Alternate Conversion, each, an “Alternate
Conversion Date”) all, or any part of, the Conversion Amount (such portion of the Conversion Amount subject to such Alternate
Conversion, each, an “Alternate Conversion Amount”) into Ordinary Shares at the Alternate Conversion Price.
(ii) Mechanics
of Alternate Conversion. On any Alternate Conversion Date, the Holder may voluntarily convert any Alternate Conversion Amount pursuant
to Section 3(c) (with “Alternate Conversion Price” replacing “Conversion Price” for all purposes hereunder
with respect to such Alternate Conversion and with “Redemption Premium of the Conversion Amount” replacing “Conversion
Amount” in clause (x) of the definition of Conversion Rate above with respect to such Alternate Conversion) by designating
in the Conversion Notice delivered pursuant to this Section 3(e) of this Note that the Holder is electing to use the Alternate
Conversion Price for such conversion; provided that in the event of the Conversion Floor Price Condition, on the applicable Alternate
Conversion Date the Company shall also deliver to the Holder the applicable Alternate Conversion Floor Amount. Notwithstanding anything
to the contrary in this Section 3(e), but subject to Section 3(d), until the Company delivers Ordinary Shares representing
the applicable Alternate Conversion Amount to the Holder, such Alternate Conversion Amount may be converted by the Holder into Ordinary
Shares pursuant to Section 3(c) without regard to this Section 3(e).
4. RIGHTS
UPON EVENT OF DEFAULT.
(a) Event
of Default. Each of the following events shall constitute an “Event of Default” and each of the events in clauses
(ix), (x) and (xi) shall constitute a “Bankruptcy Event of Default”:
(i) the
failure of the applicable Registration Statement (as defined in the Registration Rights Agreement) to be filed with the SEC on or prior
to the date that is five (5) days after the applicable Filing Deadline (as defined in the Registration Rights Agreement) or the
failure of the applicable Registration Statement to be declared effective by the SEC on or prior to the date that is five (5) days
after the applicable Effectiveness Deadline (as defined in the Registration Rights Agreement);
(ii) while
the applicable Registration Statement is required to be maintained effective pursuant to the terms of the Registration Rights Agreement,
the effectiveness of the applicable Registration Statement lapses for any reason (including, without limitation, the issuance of a stop
order) or such Registration Statement (or the prospectus contained therein) is unavailable to any holder of Registrable Securities (as
defined in the Registration Rights Agreement) for sale of all of such holder’s Registrable Securities in accordance with the terms
of the Registration Rights Agreement, and such lapse or unavailability continues for a period of five (5) consecutive days or for
more than an aggregate of ten (10) days in any 365-day period (excluding days during an Allowable Grace Period (as defined in the
Registration Rights Agreement));
(iii) the
suspension (or threatened suspension) from trading or the failure (or threatened failure) of the Ordinary Shares to be trading or listed
(as applicable) on an Eligible Market for a period of five (5) consecutive Trading Days;
(iv) the
Company’s (A) failure to cure a Conversion Failure or a Delivery Failure (as defined in the Warrants) by delivery of the required
number of Ordinary Shares within five (5) Trading Days after the applicable Conversion Date or exercise date (as the case may be)
or (B) notice, written or oral, to any holder of the Notes or Warrants, including, without limitation, by way of public announcement
or through any of its agents, at any time, of its intention not to comply, as required, with a request for conversion of any Notes into
Ordinary Shares that is requested in accordance with the provisions of the Notes, other than pursuant to Section 3(d), or a request
for exercise of any Warrants for Ordinary Shares in accordance with the provisions of the Warrants;
(v) except
to the extent the Company is in compliance with Section 12(b) below, at any time following the tenth (10th) consecutive
day that the Holder’s Authorized Share Allocation (as defined in Section 12(a) below) is less than the sum of (A) the
number of Ordinary Shares that the Holder would be entitled to receive upon a conversion of the full Conversion Amount of this Note (without
regard to any limitations on conversion set forth in Section 3(d) or otherwise), and (B) the number of Ordinary Shares
that the Holder would be entitled to receive upon exercise in full of the Holder’s Warrants (without regard to any limitations
on exercise set forth in the Warrants);
(vi) the
Company’s or any Subsidiary’s failure to pay to the Holder any amount of Principal, Interest, Late Charges or other
amounts when and as due under this Note (including, without limitation, the Company’s or any Subsidiary’s failure to pay
any redemption payments or amounts hereunder) or any other Transaction Document (as defined in the Securities Purchase Agreement) or
any other agreement, document, certificate or other instrument delivered in connection with the transactions contemplated hereby and
thereby, except, in the case of a failure to pay Interest and Late Charges when and as due, in which case only if such failure remains
uncured for a period of at least two (2) Trading Days;
(vii) the
Company fails to remove any restrictive legend on any certificate or any Ordinary Shares issued to the Holder upon conversion or exercise
(as the case may be) of any Securities (as defined in the Securities Purchase Agreement) acquired by the Holder under the Securities
Purchase Agreement (including this Note) as and when required by such Securities or the Securities Purchase Agreement, unless otherwise
then prohibited by applicable federal securities laws, and any such failure remains uncured for at least five (5) days;
(viii) the
occurrence of any default under, redemption of or acceleration prior to maturity of at least an aggregate of $250,000 of Indebtedness
(as defined in the Securities Purchase Agreement) of the Company or any of its Subsidiaries, other than with respect to any Other Notes;
(ix) bankruptcy,
insolvency, reorganization or liquidation proceedings or other proceedings for the relief of debtors shall be instituted by or against
the Company or any Subsidiary and, if instituted against the Company or any Subsidiary by a third party, shall not be dismissed within
thirty (30) days of their initiation;
(x) the
commencement by the Company or any Subsidiary of a voluntary case or proceeding under any applicable federal, state or foreign bankruptcy,
insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree, order, judgment or other similar document in respect of the Company or any Subsidiary in an involuntary
case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable federal, state or foreign law, or the consent by it to the filing of such petition or to
the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official
of the Company or any Subsidiary or of any substantial part of its property, or the making by it of an assignment for the benefit of
creditors, or the execution of a composition of debts, or the occurrence of any other similar federal, state or foreign proceeding, or
the admission by it in writing of its inability to pay its debts generally as they become due, the taking of corporate action by the
Company or any Subsidiary in furtherance of any such action or the taking of any action by any Person to commence a Uniform Commercial
Code foreclosure sale or any other similar action under federal, state or foreign law;
(xi) the
entry by a court of (i) a decree, order, judgment or other similar document in respect of the Company or any Subsidiary of a voluntary
or involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar
law or (ii) a decree, order, judgment or other similar document adjudging the Company or any Subsidiary as bankrupt or insolvent,
or approving as properly filed a petition seeking liquidation, reorganization, arrangement, adjustment or composition of or in respect
of the Company or any Subsidiary under any applicable federal, state or foreign law or (iii) a decree, order, judgment or other
similar document appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company
or any Subsidiary or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance
of any such decree, order, judgment or other similar document or any such other decree, order, judgment or other similar document unstayed
and in effect for a period of thirty (30) consecutive days;
(xii) a
final judgment or judgments for the payment of money aggregating in excess of $250,000 are rendered against the Company and/or any of
its Subsidiaries and which judgments are not, within thirty (30) days after the entry thereof, bonded, discharged, settled or stayed
pending appeal, or are not discharged within thirty (30) days after the expiration of such stay; provided, however, any judgment which
is covered by insurance or an indemnity from a credit worthy party shall not be included in calculating the $250,000 amount set forth
above so long as the Company provides the Holder a written statement from such insurer or indemnity provider (which written statement
shall be reasonably satisfactory to the Holder) to the effect that such judgment is covered by insurance or an indemnity and the Company
or such Subsidiary (as the case may be) will receive the proceeds of such insurance or indemnity within thirty (30) days of the issuance
of such judgment;
(xiii) the
Company and/or any Subsidiary, individually or in the aggregate, either (i) fails to pay, when due, or within any applicable grace
period, any payment with respect to any Indebtedness in excess of $250,000 due to any third party (other than, with respect to unsecured
Indebtedness only, payments contested by the Company and/or such Subsidiary (as the case may be) in good faith by proper proceedings
and with respect to which adequate reserves have been set aside for the payment thereof in accordance with GAAP) or is otherwise in breach
or violation of any agreement for monies owed or owing in an amount in excess of $250,000, which breach or violation permits the other
party thereto to declare a default or otherwise accelerate amounts due thereunder, or (ii) suffer to exist any other circumstance
or event that would, with or without the passage of time or the giving of notice, result in a default or event of default under any agreement
binding the Company or any Subsidiary, which default or event of default would or is likely to have a material adverse effect on the
business, assets, operations (including results thereof), liabilities, properties, condition (including financial condition) or prospects
of the Company or any of its Subsidiaries, individually or in the aggregate;
(xiv) other
than as specifically set forth in another clause of this Section 4(a), the Company or any Subsidiary breaches any representation
or warranty, or any covenant or other term or condition of any Transaction Document, except, in the case of a breach of a covenant or
other term or condition that is curable, only if such breach remains uncured for a period of two (2) consecutive Trading Days;
(xv) a
false or inaccurate certification (including a false or inaccurate deemed certification) by the Company that either (A) the Equity
Conditions are satisfied, (B) there has been no Equity Conditions Failure, or (C) as to whether any Event of Default has occurred;
(xvi) any
breach or failure in any respect by the Company or any Subsidiary to comply with any provision of Section 15 of this Note;
(xvii) any
Material Adverse Effect (as defined in the Securities Purchase Agreement) occurs;
(xviii) any
provision of any Transaction Document (including, without limitation, the Security Documents and the Guaranties) shall at any time for
any reason (other than pursuant to the express terms thereof) cease to be valid and binding on or enforceable against the parties thereto,
or the validity or enforceability thereof shall be contested by any party thereto, or a proceeding shall be commenced by the Company
or any Subsidiary or any governmental authority having jurisdiction over any of them, seeking to establish the invalidity or unenforceability
thereof, or the Company or any Subsidiary shall deny in writing that it has any liability or obligation purported to be created under
any Transaction Document (including, without limitation, the Security Documents and the Guaranties);
(xix) any
Security Document shall for any reason fail or cease to create a separate valid and perfected and, except to the extent permitted by
the terms hereof or thereof, first priority Lien (as defined in the Securities Purchase Agreement) on the Collateral (as defined in the
Security Documents) in favor of the Collateral Agent (as defined in the Securities Purchase Agreement) or any material provision of any
Security Document shall at any time for any reason cease to be valid and binding on or enforceable against the Company or the validity
or enforceability thereof shall be contested by any party thereto, or a proceeding shall be commenced by the Company or any governmental
authority having jurisdiction over the Company, seeking to establish the invalidity or unenforceability thereof;
(xx) any
material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute,
embargo, condemnation, act of God or public enemy, or other casualty which causes, for more than fifteen (15) consecutive days, the cessation
or substantial curtailment of revenue producing activities at any facility of the Company or any Subsidiary, if any such event or circumstance
could have a Material Adverse Effect; or
(xxi) any
Event of Default (as defined in the Other Notes) occurs with respect to any Other Notes.
(b) Notice
of an Event of Default; Redemption Right. Upon the occurrence of an Event of Default with respect to this Note or any Other Note,
the Company shall within one (1) Business Day deliver written notice thereof via electronic mail and overnight courier (with next
day delivery specified) (an “Event of Default Notice”) to the Holder. At any time after the earlier of the Holder’s
receipt of an Event of Default Notice and the Holder becoming aware of an Event of Default, the Holder may require the Company to redeem
(regardless of whether such Event of Default has been cured) all or any portion of this Note by delivering written notice thereof (the
“Event of Default Redemption Notice”) to the Company, which Event of Default Redemption Notice shall indicate the
portion of this Note the Holder is electing to redeem. Each portion of this Note subject to redemption by the Company pursuant to this
Section 4(b) shall be redeemed by the Company at a price equal to the greater of (i) the product of (A) the Conversion
Amount to be redeemed multiplied by (B) the Redemption Premium and (ii) the product of (X) the Conversion Rate with respect
to the Conversion Amount in effect at such time as the Holder delivers an Event of Default Redemption Notice multiplied by (Y) the
product of (1) the Redemption Premium multiplied by (2) the greatest Closing Sale Price of the Ordinary Shares on any Trading
Day during the period commencing on the date immediately preceding such Event of Default and ending on the date the Company makes the
entire payment required to be made under this Section 4(b) (the “Event of Default Redemption Price”). Redemptions
required by this Section 4(b) shall be made in accordance with the provisions of Section 13. To the extent redemptions
required by this Section 4(b) are deemed or determined by a court of competent jurisdiction to be prepayments of this Note
by the Company, such redemptions shall be deemed to be voluntary prepayments. Notwithstanding anything to the contrary in this Section 3(e),
but subject to Section 3(d), until the Event of Default Redemption Price (together with any Late Charges thereon) is paid in full,
the Conversion Amount submitted for redemption under this Section 4(b) (together with any Late Charges thereon) may be converted,
in whole or in part, by the Holder into Ordinary Shares pursuant to the terms of this Note. In the event of a partial redemption of this
Note pursuant hereto, the Principal amount redeemed shall be deducted from the Amortization Amount(s) relating to the applicable
Amortization Date(s) as set forth in the Event of Default Redemption Notice. In the event of the Company’s redemption of any
portion of this Note under this Section 4(b), the Holder’s damages would be uncertain and difficult to estimate because of
the parties’ inability to predict future interest rates and the uncertainty of the availability of a suitable substitute investment
opportunity for the Holder. Accordingly, any redemption premium due under this Section 4(b) is intended by the parties to be,
and shall be deemed, a reasonable estimate of the Holder’s actual loss of its investment opportunity and not as a penalty. Any
redemption upon an Event of Default shall not constitute an election of remedies by the Holder, and all other rights and remedies of
the Holder shall be preserved.
(c) Mandatory
Redemption upon Bankruptcy Event of Default. Notwithstanding anything to the contrary herein, and notwithstanding any conversion
that is then required or in process, upon any Bankruptcy Event of Default, whether occurring prior to or following the Maturity Date,
the Company shall immediately pay to the Holder an amount in cash representing (i) all outstanding Principal, accrued and unpaid
Interest and accrued and unpaid Late Charges on such Principal and Interest, multiplied by (ii) the Redemption Premium, in addition
to any and all other amounts due hereunder, without the requirement for any notice or demand or other action by the Holder or any other
person or entity, provided that the Holder may, in its sole discretion, waive such right to receive payment upon a Bankruptcy Event of
Default, in whole or in part, and any such waiver shall not affect any other rights of the Holder hereunder, including any other rights
in respect of such Bankruptcy Event of Default, any right to conversion, and any right to payment of the Event of Default Redemption
Price or any other Redemption Price, as applicable.
5. RIGHTS
UPON FUNDAMENTAL TRANSACTION.
(a) Assumption.
The Company shall not enter into or be party to a Fundamental Transaction unless (i) the Successor Entity assumes in writing all
of the obligations of the Company under this Note and the other Transaction Documents in accordance with the provisions of this Section 5(a) pursuant
to written agreements in form and substance satisfactory to the Holder and approved by the Holder prior to such Fundamental Transaction,
including agreements to deliver to each holder of Notes in exchange for such Notes a security of the Successor Entity evidenced by a
written instrument substantially similar in form and substance to the Notes, including, without limitation, having a principal amount
and interest rate equal to the principal amounts then outstanding and the interest rates of the Notes held by such holder, having similar
conversion rights as the Notes and having similar ranking and security to the Notes, and satisfactory to the Holder and (ii) the
Successor Entity (including its Parent Entity) is a publicly traded corporation whose common equity is quoted on or listed for trading
on an Eligible Market. Upon the occurrence of any Fundamental Transaction, the Successor Entity shall succeed to, and be substituted
for (so that from and after the date of such Fundamental Transaction, the provisions of this Note and the other Transaction Documents
referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company
and shall assume all of the obligations of the Company under this Note and the other Transaction Documents with the same effect as if
such Successor Entity had been named as the Company herein. Upon consummation of a Fundamental Transaction, the Successor Entity shall
deliver to the Holder confirmation that there shall be issued upon conversion or redemption of this Note at any time after the consummation
of such Fundamental Transaction, in lieu of the Ordinary Shares (or other securities, cash, assets or other property (except such items
still issuable under Sections 6 and 17, which shall continue to be receivable thereafter)) issuable upon the conversion or redemption
of the Notes prior to such Fundamental Transaction, such shares of the publicly traded common equity (or their equivalent) of the Successor
Entity (including its Parent Entity) which the Holder would have been entitled to receive upon the happening of such Fundamental Transaction
had this Note been converted immediately prior to such Fundamental Transaction (without regard to any limitations on the conversion of
this Note), as adjusted in accordance with the provisions of this Note. Notwithstanding the foregoing, the Holder may elect, at its sole
option, by delivery of written notice to the Company to waive this Section 5(a) to permit the Fundamental Transaction without
the assumption of this Note. The provisions of this Section 5 shall apply similarly and equally to successive Fundamental Transactions
and shall be applied without regard to any limitations on the conversion of this Note.
(b) Notice
of a Change of Control; Redemption Right. No sooner than twenty (20) Trading Days nor later than ten (10) Trading Days prior
to the consummation of a Change of Control (the “Change of Control Date”), but not prior to the public announcement
of such Change of Control, the Company shall deliver written notice thereof via electronic mail and overnight courier to the Holder (a
“Change of Control Notice”). At any time during the period beginning after the Holder’s receipt of a Change
of Control Notice or the Holder becoming aware of a Change of Control if a Change of Control Notice is not delivered to the Holder in
accordance with the immediately preceding sentence (as applicable) and ending on twenty (20) Trading Days after the later of (A) the
date of consummation of such Change of Control or (B) the date of receipt of such Change of Control Notice or (C) the date
of the announcement of such Change of Control, the Holder may require the Company to redeem all or any portion of this Note by delivering
written notice thereof (“Change of Control Redemption Notice”) to the Company, which Change of Control Redemption
Notice shall indicate the Conversion Amount the Holder is electing to redeem. The portion of this Note subject to redemption pursuant
to this Section 5 shall be redeemed by the Company in cash at a price equal to the greatest of (i) the product of (w) the
Change of Control Redemption Premium multiplied by (y) the Conversion Amount being redeemed, (ii) the product of (x) the
Change of Control Redemption Premium multiplied by (y) the product of (A) the Conversion Amount being redeemed multiplied by
(B) the quotient determined by dividing (I) the greatest Closing Sale Price of the Ordinary Shares during the period beginning
on the date immediately preceding the earlier to occur of (1) the consummation of the applicable Change of Control and (2) the
public announcement of such Change of Control and ending on the date the Holder delivers the Change of Control Redemption Notice by (II) the
Conversion Price then in effect and (iii) the product of (y) the Change of Control Redemption Premium multiplied by (z) the
product of (A) the Conversion Amount being redeemed multiplied by (B) the quotient of (I) the aggregate cash consideration
and the aggregate cash value of any non-cash consideration per Ordinary Share to be paid to the holders of the Ordinary Shares upon consummation
of such Change of Control (any such non-cash consideration constituting publicly-traded securities shall be valued at the highest of
the Closing Sale Price of such securities as of the Trading Day immediately prior to the consummation of such Change of Control, the
Closing Sale Price of such securities on the Trading Day immediately following the public announcement of such proposed Change of Control
and the Closing Sale Price of such securities on the Trading Day immediately prior to the public announcement of such proposed Change
of Control) divided by (II) the Conversion Price then in effect (the “Change of Control Redemption Price”). Redemptions
required by this Section 5 shall be made in accordance with the provisions of Section 13 and shall have priority to payments
to shareholders in connection with such Change of Control. To the extent redemptions required by this Section 5(b) are deemed
or determined by a court of competent jurisdiction to be prepayments of this Note by the Company, such redemptions shall be deemed to
be voluntary prepayments. Notwithstanding anything to the contrary in this Section 5, but subject to Section 3(d), until the
Change of Control Redemption Price (together with any Late Charges thereon) is paid in full, the Conversion Amount submitted for redemption
under this Section 5(b) (together with any Late Charges thereon) may be converted, in whole or in part, by the Holder into
Ordinary Shares pursuant to Section 3. In the event of a partial redemption of this Note pursuant hereto, the Principal amount redeemed
shall be deducted from the Amortization Amount(s) relating to the applicable Amortization Date(s) as set forth in the Change
of Control Redemption Notice. In the event of the Company’s redemption of any portion of this Note under this Section 5(b),
the Holder’s damages would be uncertain and difficult to estimate because of the parties’ inability to predict future interest
rates and the uncertainty of the availability of a suitable substitute investment opportunity for the Holder. Accordingly, any redemption
premium due under this Section 5(b) is intended by the parties to be, and shall be deemed, a reasonable estimate of the Holder’s
actual loss of its investment opportunity and not as a penalty.
6. RIGHTS
UPON ISSUANCE OF PURCHASE RIGHTS AND OTHER CORPORATE EVENTS.
(a) Purchase
Rights. In addition to any adjustments pursuant to Section 7 and 17 below, if at any time the Company grants, issues or sells
any Options, Convertible Securities or rights to purchase shares, warrants, securities or other property pro rata to all or substantially
all of the record holders of any class of Ordinary Shares (the “Purchase Rights”), then the Holder will be entitled
to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if
the Holder had held the number of Ordinary Shares acquirable upon complete conversion of this Note (without taking into account any limitations
or restrictions on the convertibility of this Note and assuming for such purpose that the Note was converted at the Alternate Conversion
Price as of the applicable record date) immediately prior to the date on which a record is taken for the grant, issuance or sale of such
Purchase Rights, or, if no such record is taken, the date as of which the record holders of Ordinary Shares are to be determined for
the grant, issue or sale of such Purchase Rights (provided, however, that to the extent that the Holder’s right to
participate in any such Purchase Right would result in the Holder and the other Attribution Parties exceeding the Maximum Percentage,
then the Holder shall not be entitled to participate in such Purchase Right to the extent of the Maximum Percentage (and shall not be
entitled to beneficial ownership of such Ordinary Shares as a result of such Purchase Right (and beneficial ownership) to the extent
of any such excess) and such Purchase Right to such extent shall be held in abeyance (and, if such Purchase Right has an expiration date,
maturity date or other similar provision, such term shall be extended by such number of days held in abeyance, if applicable) for the
benefit of the Holder until such time or times, if ever, as its right thereto would not result in the Holder and the other Attribution
Parties exceeding the Maximum Percentage, at which time or times the Holder shall be granted such right (and any Purchase Right granted,
issued or sold on such initial Purchase Right or on any subsequent Purchase Right held similarly in abeyance (and, if such Purchase Right
has an expiration date, maturity date or other similar provision, such term shall be extended by such number of days held in abeyance,
if applicable)) to the same extent as if there had been no such limitation).
(b) Other
Corporate Events. In addition to and not in substitution for any other rights hereunder, prior to the consummation of any Fundamental
Transaction pursuant to which holders of Ordinary Shares are entitled to receive securities or other assets with respect to or in exchange
for Ordinary Shares (a “Corporate Event”), the Company shall make appropriate provision to ensure that the Holder
will thereafter have the right to receive upon a conversion of this Note, at the Holder’s option (i) in addition to the Ordinary
Shares receivable upon such conversion, such securities or other assets to which the Holder would have been entitled with respect to
such Ordinary Shares had such Ordinary Shares been held by the Holder upon the consummation of such Corporate Event (without taking into
account any limitations or restrictions on the convertibility of this Note) or (ii) in lieu of the Ordinary Shares otherwise receivable
upon such conversion, such securities or other assets received by the holders of Ordinary Shares in connection with the consummation
of such Corporate Event in such amounts as the Holder would have been entitled to receive had this Note initially been issued with conversion
rights for the form of such consideration (as opposed to Ordinary Shares) at a conversion rate for such consideration commensurate with
the Conversion Rate. Provision made pursuant to the preceding sentence shall be in a form and substance satisfactory to the Holder. The
provisions of this Section 6 shall apply similarly and equally to successive Corporate Events and shall be applied without regard
to any limitations on the conversion or redemption of this Note.
7. RIGHTS
UPON ISSUANCE OF OTHER SECURITIES.
(a) Adjustment
of Conversion Price upon Issuance of Ordinary Shares. If and whenever on or after the Subscription Date the Company grants, issues
or sells (or enters into any agreement to grant, issue or sell), or in accordance with this Section 7(a) is deemed to have
granted, issued or sold, any Ordinary Shares (including the granting, issuance or sale of Ordinary Shares owned or held by or for the
account of the Company, but excluding any Excluded Securities granted, issued or sold or deemed to have been granted, issued or sold)
for a consideration per share (the “New Issuance Price”) less than a price equal to the Conversion Price in effect
immediately prior to such granting, issuance or sale or deemed granting, issuance or sale (such Conversion Price then in effect is referred
to herein as the “Applicable Price”) (the foregoing a “Dilutive Issuance”), then, immediately after
such Dilutive Issuance, the Conversion Price then in effect shall be reduced to an amount equal to the New Issuance Price. For all purposes
of the foregoing (including, without limitation, determining the adjusted Conversion Price and the New Issuance Price under this Section 7(a)),
the following shall be applicable:
(i) Issuance
of Options. If the Company in any manner grants, issues or sells (or enters into any agreement to grant, issue or sell) any Options
and the lowest price per share for which one Ordinary Share is at any time issuable upon the exercise of any such Option or upon conversion,
exercise or exchange of any Convertible Securities issuable upon exercise of any such Option or otherwise pursuant to the terms thereof
is less than the Applicable Price, then such Ordinary Share shall be deemed to be outstanding and to have been issued and sold by the
Company at the time of the granting, issuance or sale of such Option for such price per share. For purposes of this Section 7(a)(i),
the “lowest price per share for which one Ordinary Share is at any time issuable upon the exercise of any such Option or upon conversion,
exercise or exchange of any Convertible Securities issuable upon exercise of any such Option or otherwise pursuant to the terms thereof”
shall be equal to (1) the lower of (x) the sum of the lowest amounts of consideration (if any) received or receivable by the
Company with respect to any one Ordinary Share upon the granting, issuance or sale of such Option, upon exercise of such Option and upon
conversion, exercise or exchange of any Convertible Security issuable upon exercise of such Option or otherwise pursuant to the terms
thereof and (y) the lowest exercise price set forth in such Option for which one Ordinary Share is issuable (or may become issuable
assuming all possible market conditions) upon the exercise of any such Options or upon conversion, exercise or exchange of any Convertible
Securities issuable upon exercise of any such Option or otherwise pursuant to the terms thereof, minus (2) the sum of all amounts
paid or payable to the holder of such Option (or any other Person) with respect to any one Ordinary Share upon the granting, issuance
or sale of such Option, upon exercise of such Option and upon conversion, exercise or exchange of any Convertible Security issuable upon
exercise of such Option or otherwise pursuant to the terms thereof plus the value of any other consideration (including, without limitation,
consideration consisting of cash, debt forgiveness, assets or any other property) received or receivable by, or benefit conferred on,
the holder of such Option (or any other Person). Except as contemplated below, no further adjustment of the Conversion Price shall be
made upon the actual issuance of such Ordinary Share or of such Convertible Securities upon the exercise of such Options or otherwise
pursuant to the terms thereof or upon the actual issuance of such Ordinary Shares upon conversion, exercise or exchange of such Convertible
Securities.
(ii) Issuance
of Convertible Securities. If the Company in any manner issues or sells (or enters into any agreement to issue or sell) any Convertible
Securities and the lowest price per share for which one Ordinary Share is at any time issuable upon the conversion, exercise or exchange
thereof or otherwise pursuant to the terms thereof is less than the Applicable Price, then such Ordinary Share shall be deemed to be
outstanding and to have been issued and sold by the Company at the time of the issuance or sale (or the time of execution of such agreement
to issue or sell, as applicable) of such Convertible Securities for such price per share. For the purposes of this Section 7(a)(i),
the “lowest price per share for which one Ordinary Share is at any time issuable upon the conversion, exercise or exchange thereof
or otherwise pursuant to the terms thereof” shall be equal to (1) the lower of (x) the sum of the lowest amounts of consideration
(if any) received or receivable by the Company with respect to one Ordinary Share upon the issuance or sale (or pursuant to the agreement
to issue or sell, as applicable) of the Convertible Security and upon conversion, exercise or exchange of such Convertible Security or
otherwise pursuant to the terms thereof and (y) the lowest conversion price set forth in such Convertible Security for which one
Ordinary Share is issuable (or may become issuable assuming all possible market conditions) upon conversion, exercise or exchange thereof
or otherwise pursuant to the terms thereof minus (2) the sum of all amounts paid or payable to the holder of such Convertible Security
(or any other Person) with respect to any one Ordinary Share upon the issuance or sale (or the agreement to issue or sell, as applicable)
of such Convertible Security plus the value of any other consideration received or receivable (including, without limitation, any consideration
consisting of cash, debt forgiveness, assets or other property) by, or benefit conferred on, the holder of such Convertible Security
(or any other Person). Except as contemplated below, no further adjustment of the Conversion Price shall be made upon the actual issuance
of such Ordinary Shares upon conversion, exercise or exchange of such Convertible Securities or otherwise pursuant to the terms thereof,
and if any such issuance or sale of such Convertible Securities is made upon exercise of any Options for which adjustment of the Conversion
Price has been or is to be made pursuant to other provisions of this Section 7(a), except as contemplated below, no further adjustment
of the Conversion Price shall be made by reason of such issuance or sale.
(iii) Change
in Option Price or Rate of Conversion. If the purchase or exercise price provided for in any Options, the additional consideration,
if any, payable upon the issue, conversion, exercise or exchange of any Convertible Securities, or the rate at which any Convertible
Securities are convertible into or exercisable or exchangeable for Ordinary Shares increases or decreases at any time (other than proportional
changes in conversion or exercise prices, as applicable, in connection with an event referred to in Section 7(b) below), the
Conversion Price in effect at the time of such increase or decrease shall be adjusted to the Conversion Price which would have been in
effect at such time had such Options or Convertible Securities provided for such increased or decreased purchase price, additional consideration
or increased or decreased conversion rate (as the case may be) at the time initially granted, issued or sold. For purposes of this Section 7(a)(iii),
if the terms of any Option or Convertible Security (including, without limitation, any Option or Convertible Security that was outstanding
as of the Subscription Date) are increased or decreased in the manner described in the immediately preceding sentence, then such Option
or Convertible Security and the Ordinary Shares deemed issuable upon exercise, conversion or exchange thereof shall be deemed to have
been issued as of the date of such increase or decrease. No adjustment pursuant to this Section 7(a) shall be made if such
adjustment would result in an increase of the Conversion Price then in effect.
(iv) Calculation
of Consideration Received. If any Option and/or Convertible Security and/or Adjustment Right is issued in connection with the issuance
or sale or deemed issuance or sale of any other securities of the Company (as determined by the Holder, the “Primary Security”,
and such Option and/or Convertible Security and/or Adjustment Right, the “Secondary Securities” and together with
the Primary Security, each a “Unit”), together comprising one integrated transaction, the aggregate consideration
per Ordinary Share with respect to such Primary Security shall be deemed to be the lower of (x) the purchase price of such Unit,
(y) if such Primary Security is an Option and/or Convertible Security, the lowest price per share for which one Ordinary Share is
at any time issuable upon the exercise or conversion of the Primary Security in accordance with Section 7(a)(i) or 7(a)(ii) above
and (z) the average VWAP of the Ordinary Shares on any Trading Day during the five (5) Trading Day period (the “Adjustment
Period”) immediately following the public announcement of such Dilutive Issuance (for the avoidance of doubt, if such public
announcement is released prior to the opening of the Principal Market on a Trading Day, such Trading Day shall be the first Trading Day
in such five Trading Day period and if this Note is converted, on any given Conversion Date during any such Adjustment Period, solely
with respect to such portion of this Note converted on such applicable Conversion Date, such applicable Adjustment Period shall be deemed
to have ended on, and included, the Trading Day immediately prior to such Conversion Date). If any Ordinary Shares, Options or Convertible
Securities are issued or sold or deemed to have been issued or sold for cash, the consideration received therefor will be deemed to be
the net amount of consideration received by the Company therefor. If any Ordinary Shares, Options or Convertible Securities are issued
or sold for a consideration other than cash, the amount of such consideration received by the Company will be the fair value of such
consideration, except where such consideration consists of publicly traded securities, in which case the amount of consideration received
by the Company for such securities will be the arithmetic average of the VWAPs of such security for each of the five (5) Trading
Days immediately preceding the date of receipt. If any Ordinary Shares, Options or Convertible Securities are issued to the owners of
the non-surviving entity in connection with any merger in which the Company is the surviving entity, the amount of consideration therefor
will be deemed to be the fair value of such portion of the net assets and business of the non-surviving entity as is attributable to
such Ordinary Shares, Options or Convertible Securities (as the case may be). The fair value of any consideration other than cash or
publicly traded securities will be determined jointly by the Company and the Holder. If such parties are unable to reach agreement within
ten (10) days after the occurrence of an event requiring valuation (the “Valuation Event”), the fair value of
such consideration will be determined within five (5) Trading Days after the tenth (10th) day following such Valuation
Event by an independent, reputable appraiser jointly selected by the Company and the Holder. The determination of such appraiser shall
be final and binding upon all parties absent manifest error and the fees and expenses of such appraiser shall be borne by the Company.
(v) Record
Date. If the Company takes a record of the holders of Ordinary Shares for the purpose of entitling them (A) to receive a dividend
or other distribution payable in Ordinary Shares, Options or in Convertible Securities or (B) to subscribe for or purchase Ordinary
Shares, Options or Convertible Securities, then such record date will be deemed to be the date of the issuance or sale of the Ordinary
Shares deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date
of the granting of such right of subscription or purchase (as the case may be).
(b) Adjustment
of Conversion Price upon Subdivision or Combination of Ordinary Shares. Without limiting any provision of Section 6, Section 17
or Section 7(a), if the Company at any time on or after the Subscription Date subdivides (by any share split, share dividend, share
combination, recapitalization or other similar transaction) one or more classes of its outstanding Ordinary Shares into a greater number
of shares, the Conversion Price in effect immediately prior to such subdivision will be proportionately reduced. Without limiting any
provision of Section 6, Section 17 or Section 7(a), if the Company at any time on or after the Subscription Date combines
(by any share split, share dividend, share combination, recapitalization or other similar transaction) one or more classes of its outstanding
Ordinary Shares into a smaller number of shares, the Conversion Price in effect immediately prior to such combination will be proportionately
increased. Any adjustment pursuant to this Section 7(b) shall become effective immediately after the effective date of such
subdivision or combination. If any event requiring an adjustment under this Section 7(b) occurs during the period that a Conversion
Price is calculated hereunder, then the calculation of such Conversion Price shall be adjusted appropriately to reflect such event.
(c) Holder’s
Right of Adjusted Conversion Price. In addition to and not in limitation of the other provisions of this Section 7, if the Company
in any manner issues or sells or enters into any agreement to issue or sell, any Ordinary Shares, Options or Convertible Securities (any
such securities, “Variable Price Securities”), after the Subscription Date that are issuable pursuant to such agreement
or convertible into or exchangeable or exercisable for Ordinary Shares at a price which varies or may vary with the market price of the
Ordinary Shares, including by way of one or more reset(s) to a fixed price, but exclusive of such formulations reflecting customary
anti-dilution provisions (such as share splits, share combinations, share dividends and similar transactions) (each of the formulations
for such variable price being herein referred to as, the “Variable Price”), the Company shall provide written notice
thereof via electronic mail and overnight courier to the Holder on the date of such agreement and the issuance of such Ordinary Shares,
Convertible Securities or Options. From and after the date the Company enters into such agreement or issues any such Variable Price Securities,
the Holder shall have the right, but not the obligation, in its sole discretion to substitute the Variable Price for the Conversion Price
upon conversion of this Note by designating in the Conversion Notice delivered upon any conversion of this Note that solely for purposes
of such conversion the Holder is relying on the Variable Price rather than the Conversion Price then in effect. The Holder’s election
to rely on a Variable Price for a particular conversion of this Note shall not obligate the Holder to rely on a Variable Price for any
future conversion of this Note.
(d) Reset
of Conversion Price. On [ ]1 (the “Reset Date”),
if the Reset Price (as defined below), is less than the Conversion Price then in effect, the Conversion Price shall be automatically
reduced to the Reset Price. “Reset Price” means the VWAP of the Ordinary Shares on any Trading Day during the ten
(10) Trading Day period ending, and including, the Trading Day immediately prior to the Reset Date (as adjusted for share splits,
share dividends, share combinations, recapitalizations and similar events during such measuring period).
(e) Share
Combination Event Adjustments. If at any time and from time to time on or after the Subscription Date there occurs any share split,
share dividend, share combination recapitalization or other similar transaction involving the Ordinary Shares (each, a “Share
Combination Event”, and such date thereof, the “Share Combination Event Date”) and the Event Market Price
is less than the Conversion Price then in effect (after giving effect to the adjustment in Section 7(b) above), then on the
sixteenth (16th) Trading Day immediately following such Share Combination Event Date, the Conversion Price then in effect
on such sixteenth (16th) Trading Day (after giving effect to the adjustment in Section 7(b) above) shall be reduced
(but in no event increased) to the Event Market Price. For the avoidance of doubt, if the adjustment in the immediately preceding sentence
would otherwise result in an increase in the Conversion Price hereunder, no adjustment shall be made.
(f) Other
Events. In the event that the Company (or any Subsidiary) shall take any action to which the provisions hereof are not strictly applicable,
or, if applicable, would not operate to protect the Holder from dilution or if any event occurs of the type contemplated by the provisions
of this Section 7 but not expressly provided for by such provisions (including, without limitation, the granting of share appreciation
rights, phantom share rights or other rights with equity features), then the Company’s board of directors shall in good faith determine
and implement an appropriate adjustment in the Conversion Price so as to protect the rights of the Holder, provided that no such adjustment
pursuant to this Section 7(e) will increase the Conversion Price as otherwise determined pursuant to this Section 7, provided
further that if the Holder does not accept such adjustments as appropriately protecting its interests hereunder against such dilution,
then the Company’s board of directors and the Holder shall agree, in good faith, upon an independent investment bank of nationally
recognized standing to make such appropriate adjustments, whose determination shall be final and binding absent manifest error and whose
fees and expenses shall be borne by the Company.
1 Insert 9 month anniversary
of Issuance Date (or, if applicable, the first Trading Day thereafter)
(g) Calculations.
All calculations under this Section 7 shall be made by rounding to the nearest cent or the nearest 1/100th of a share,
as applicable. The number of Ordinary Shares outstanding at any given time shall not include shares owned or held by or for the account
of the Company, and the disposition of any such shares shall be considered an issue or sale of Ordinary Shares.
(h) Voluntary
Adjustment by Company. Subject to the rules and regulations of the Principal Market, the Company may at any time during the
term of this Note, with the prior written consent of the Required Holders (as defined in the Securities Purchase Agreement), reduce the
then current Conversion Price of each of the Notes to any amount and for any period of time deemed appropriate by the board of directors
of the Company.
8. REDEMPTIONS
AT THE COMPANY’S ELECTION.
(a) Company
Optional Redemption. At any time the Company shall have the right to redeem all, but not less than all, of the Conversion Amount
then remaining under this Note (the “Company Optional Redemption Amount”) on the Company Optional Redemption Date
(as defined below) (a “Company Optional Redemption”). The portion of this Note subject to redemption pursuant to this
Section 8(a) shall be redeemed by the Company in cash at a price (the “Company Optional Redemption Price”)
equal to (i) if the Company Optional Redemption Date is during the first six months following the Issuance Date, 108% of the Conversion
Amount being redeemed as of the Company Optional Redemption Date, or (ii) if the Company Optional Redemption Date is after the first
six months following the Issuance Date, 115% of the Conversion Amount being redeemed as of the Company Optional Redemption Date. The
Company may exercise its right to require redemption under this Section 8(a) by delivering a written notice thereof by electronic
mail and overnight courier to all, but not less than all, of the holders of Notes (the “Company Optional Redemption Notice”
and the date all of the holders of Notes received such notice is referred to as the “Company Optional Redemption Notice Date”).
The Company may deliver only one Company Optional Redemption Notice hereunder and such Company Optional Redemption Notice shall be irrevocable.
The Company Optional Redemption Notice shall (x) state the date on which the Company Optional Redemption shall occur (the “Company
Optional Redemption Date”) which date shall not be less than forty-five (45) Trading Days nor more than one hundred (100) Trading
Days following the Company Optional Redemption Notice Date, and (y) state the aggregate Conversion Amount of the Notes which is
being redeemed in such Company Optional Redemption from the Holder and all of the other holders of the Notes pursuant to this Section 8
(and analogous provisions under the Other Notes) on the Company Optional Redemption Date. Redemptions made pursuant to this Section 8
shall be made in accordance with Section 13. In the event of the Company’s redemption of any portion of this Note under this
Section 8, the Holder’s damages would be uncertain and difficult to estimate because of the parties’ inability to predict
future interest rates and the uncertainty of the availability of a suitable substitute investment opportunity for the Holder. Accordingly,
any redemption premium due under this Section 8 is intended by the parties to be, and shall be deemed, a reasonable estimate of
the Holder’s actual loss of its investment opportunity and not as a penalty. For the avoidance of doubt, the Company shall have
no right to effect a Company Optional Redemption if any Event of Default has occurred and continuing, but any Event of Default shall
have no effect upon the Holder’s right to convert this Note in its discretion.
(b) Pro
Rata Redemption Requirement. If the Company elects to cause a Company Optional Redemption of this Note pursuant to Section 8,
then it must simultaneously take the same action with respect to all of the Other Notes.
9. AMORTIZATION
CONVERSION OR REDEMPTION.2
(a) General.
On each applicable Amortization Date, provided there has been no Equity Conditions Failure, the Company shall pay to the Holder of this
Note the applicable Amortization Amount due on such date by converting such Amortization Amount in accordance with this Section 9
(a “Amortization Conversion”); provided, however, that the Company may, at its option following notice
to the Holder as set forth below, pay the Amortization Amount by redeeming such Amortization Amount in cash (a “Amortization
Redemption”) or by any combination of an Amortization Conversion and an Amortization Redemption so long as all of the outstanding
applicable Amortization Amount due on any Amortization Date shall be converted and/or redeemed by the Company on the applicable Amortization
Date, subject to the provisions of this Section 9. On the date which is the sixteenth (16th) Trading Day prior to each Amortization
Date (each, an “Amortization Notice Due Date”), the Company shall deliver written notice (each, a “Amortization
Notice” and the date all of the holders receive such notice is referred to as to the “Amortization Notice Date”),
to each holder of Notes and such Amortization Notice shall (i) either (A) confirm that the applicable Amortization Amount of
such holder’s Note shall be converted in whole pursuant to an Amortization Conversion or (B) (1) state that the Company
elects to redeem for cash, or is required to redeem for cash in accordance with the provisions of the Notes, in whole or in part, the
applicable Amortization Amount pursuant to an Amortization Redemption and (2) specify the portion of such Amortization Amount which
the Company elects or is required to redeem pursuant to an Amortization Redemption (such amount to be redeemed in cash, the “Amortization
Redemption Amount”) and the portion of the applicable Amortization Amount, if any, with respect to which the Company will,
and is permitted to, effect an Amortization Conversion (such amount of the applicable Amortization Amount so specified to be so converted
pursuant to this Section 9 is referred to herein as the “Amortization Conversion Amount”), which amounts when
added together, must at least equal the entire applicable Amortization Amount and (ii) if the applicable Amortization Amount is
to be paid, in whole or in part, pursuant to an Amortization Conversion, certify that there is not then an Equity Conditions Failure
as of the applicable Amortization Notice Date. Each Amortization Notice shall be irrevocable. If the Company does not timely deliver
an Amortization Notice in accordance with this Section 9 with respect to a particular Amortization Date, then the Company shall
be deemed to have delivered an irrevocable Amortization Notice confirming an Amortization Conversion of the entire Amortization Amount
payable on such Amortization Date and shall be deemed to have certified that there is not then an Equity Conditions Failure in connection
with such Amortization Conversion. Except as expressly provided in this Section 9(a), the Company shall convert and/or redeem the
applicable Amortization Amount of this Note pursuant to this Section 9 and the corresponding Amortization Amounts of the Other Notes
pursuant to the corresponding provisions of the Other Notes in the same ratio of the applicable Amortization Amount being converted and/or
redeemed hereunder. The applicable Amortization Conversion Amount (whether set forth in the applicable Amortization Notice or by operation
of this Section 9) shall be converted in accordance with Section 9(b) and the applicable Amortization Redemption Amount
shall be redeemed in accordance with Section 9(c).
2
Note: Due to legal issues, we have not included
the 50% conversion limitation in Section 9 (and in lieu of, there is a maximum share limitation
in the Equity Conditions)
(b) Mechanics
of Amortization Conversion. Subject to Section 3(d), if the Company delivers an Amortization Notice or is deemed to have delivered
an Amortization Notice certifying that such Amortization Amount is being paid, in whole or in part, in an Amortization Conversion in
accordance with Section 9(a), then the remainder of this Section 9(b) shall apply. The applicable Amortization Conversion
Amount, if any, shall be converted on the applicable Amortization Date at the applicable Amortization Conversion Price and the Company
shall, on such Amortization Date, (A) deliver to the Holder’s account with DTC such Ordinary Shares issued upon such conversion
(subject to the reduction contemplated by the immediately following sentence and, if applicable, the penultimate sentence of this Section 9(b)),
provided that the Equity Conditions are then satisfied (or waived in writing by the Holder) on such Amortization Date and an Amortization
Conversion is not otherwise prohibited under any other provision of this Note and (B) in the event of the Conversion Floor Price
Condition, the Company shall deliver to the Holder the applicable Amortization Conversion Floor Amount. If the Company confirmed (or
is deemed to have confirmed by operation of Section 9(a)) the conversion of the applicable Amortization Conversion Amount, in whole
or in part, and there was no Equity Conditions Failure as of the applicable Amortization Notice Date (or is deemed to have certified
that the Equity Conditions in connection with any such conversion have been satisfied by operation of Section 9(a)) but an Equity
Conditions Failure occurred between the applicable Amortization Notice Date and any time through the applicable Amortization Date (the
“Interim Amortization Period”), the Company shall provide the Holder a subsequent notice to that effect. If there
is an Equity Conditions Failure (which is not waived in writing by the Holder) during such Interim Amortization Period or an Amortization
Conversion is not otherwise permitted under any other provision of this Note, then, at the option of the Holder designated in writing
to the Company, the Holder may require the Company to do any one or more of the following: (i) the Company shall redeem all or any
part designated by the Holder of the unconverted Amortization Conversion Amount (such designated amount is referred to as the “Designated
Redemption Amount”) and the Company shall pay to the Holder within two (2) days of such Amortization Date, by wire transfer
of immediately available funds, an amount in cash equal to 110% of such Designated Redemption Amount, and/or (ii) the Amortization
Conversion shall be null and void with respect to all or any part designated by the Holder of the unconverted Amortization Conversion
Amount and the Holder shall be entitled to all the rights of a holder of this Note with respect to such designated part of the Amortization
Conversion Amount; provided, however, the Conversion Price for such designated part of such unconverted Amortization Conversion Amount
shall thereafter be adjusted to equal the lesser of (A) the Amortization Conversion Price as in effect on the date on which the
Holder voided the Amortization Conversion and (B) the Amortization Conversion Price that would be in effect on the date on which
the Holder delivers a Conversion Notice relating thereto as if such date was an Amortization Date. If the Company fails to redeem any
Designated Redemption Amount by the second (2nd) day following the applicable Amortization Date by payment of such amount by such date,
then the Holder shall have the rights set forth in Section 13(a) as if the Company failed to pay the applicable Amortization
Redemption Price (as defined below) and all other rights under this Note (including, without limitation, such failure constituting an
Event of Default described in Section 4(a)(vi)). Notwithstanding anything to the contrary in this Section 9(b), but subject
to 3(d), until the Company delivers Ordinary Shares representing the Amortization Conversion Amount to the Holder, the Amortization Conversion
Amount may be converted by the Holder into Ordinary Shares pursuant to Section 3. In the event that the Holder elects to convert
the Amortization Conversion Amount prior to the applicable Amortization Date as set forth in the immediately preceding sentence, the
Amortization Conversion Amount so converted shall be deducted from the Amortization Amount(s) relating to the applicable Amortization
Date(s) as set forth in the applicable Conversion Notice. The Company shall pay any and all taxes that may be payable with respect
to the issuance and delivery of any Ordinary Shares in any Amortization Conversion hereunder.
(c) Mechanics
of Amortization Redemption. If the Company elects or is required to effect an Amortization Redemption, in whole or in part, in accordance
with Section 9(a), then the Amortization Redemption Amount, if any, shall be redeemed by the Company in cash on the applicable Amortization
Date by wire transfer to the Holder of immediately available funds in an amount equal to 100% of the applicable Amortization Redemption
Amount (the “Amortization Redemption Price”). If the Company fails to redeem such Amortization Redemption Amount on
such Amortization Date by payment of the Amortization Redemption Price, then, at the option of the Holder designated in writing to the
Company (any such designation shall be a “Conversion Notice” for purposes of this Note), the Holder may require the
Company to convert all or any part of the Amortization Redemption Amount at the Amortization Conversion Price (determined as of the date
of such designation as if such date were an Amortization Date). Conversions required by this Section 9(c) shall be made in
accordance with the provisions of Section 3(c). Notwithstanding anything to the contrary in this Section 9(c), but subject
to Section 3(d), until the Amortization Redemption Price (together with any Late Charges thereon) is paid in full, the Amortization
Redemption Amount (together with any Late Charges thereon) may be converted, in whole or in part, by the Holder into Ordinary Shares
pursuant to Section 3. In the event the Holder elects to convert all or any portion of the Amortization Redemption Amount prior
to the applicable Amortization Date as set forth in the immediately preceding sentence, the Amortization Redemption Amount so converted
shall be deducted from the Amortization Amounts relating to the applicable Amortization Date(s) as set forth in the applicable Conversion
Notice. Redemptions required by this Section 9(c) shall be made in accordance with the provisions of Section 13.
(d) Deferred
Amortization Amount. Notwithstanding any provision of this Section 9(d) to the contrary, the Holder may, at its option
and in its sole discretion, deliver a written notice to the Company no later than the Trading Day immediately prior to the applicable
Amortization Date electing to have the payment of all or any portion of an Amortization Amount payable on such Amortization Date deferred
(such amount deferred, the “Deferral Amount”, and such deferral, each a “Deferral”) until any subsequent
Amortization Date selected by the Holder, in its sole discretion, in which case, the Deferral Amount shall be added to, and become part
of, such subsequent Amortization Amount and such Deferral Amount shall continue to accrue Interest hereunder. Any notice delivered by
the Holder pursuant to this Section 9(d) shall set forth (i) the Deferral Amount and (ii) the date that such Deferral
Amount shall now be payable.
(e) Acceleration
of Amortization Amounts. Acceleration of Amortization Amounts. Notwithstanding anything herein to the contrary, during the period
commencing on an Amortization Date (a “Current Amortization Date”) and ending on the Trading Day immediately prior
to the next Amortization Date (each, an “Amortization Period”), at the option of the Holder, at one or more times,
the Holder may convert other Amortization Amounts (each, an “Acceleration”, and each such amount, an “Acceleration
Amount”), in whole or in part, at the Amortization Conversion Price of such Current Amortization Date in accordance with the
conversion procedures set forth in Section 3 hereunder, mutatis mutandis. Notwithstanding the foregoing, with respect to any given
Amortization Period, the Holder may not elect to effect any Acceleration (a “Current Acceleration”) during such Amortization
Period if the sum of (x) the Acceleration Amounts with respect to Accelerations previously consummated by the Holder during the
applicable Amortization Period and (y) the Acceleration Amount of such Current Acceleration, collectively, exceeds three (3) times
the Amortization Amount with respect to such Current Amortization Date.
10. SUBSEQUENT
PLACEMENT OPTIONAL REDEMPTION
(a) General.
At any time from and after (i) the date the Holder becomes aware of the occurrence of a Subsequent Placement (as defined in the
Securities Purchase Agreement) (the “Holder Notice Date”), and (ii) the time of consummation of a Subsequent
Placement (in each case, other than with respect to Excluded Securities (as defined in the Securities Purchase Agreement)) (each, an
“Eligible Subsequent Placement”), the Holder shall have the right, in its sole discretion, to require that the Company
redeem (each a “Subsequent Placement Optional Redemption”) all, or any portion, of the Conversion Amount under this
Note not in excess of (together with any Subsequent Placement Optional Redemption Amount (as defined in the applicable other Note of
the Holder) of any other Notes of the Holder) the Holder’s Holder Pro Rata Amount of 30% of the gross proceeds of such Eligible
Subsequent Placement (the “Eligible Subsequent Placement Optional Redemption Amount”) by delivering written notice
thereof (an “Subsequent Placement Optional Redemption Notice”) to the Company. Notwithstanding the foregoing, if the
Holder is participating in an Eligible Subsequent Placement, upon the written request of the Holder, the Company shall apply all, or
any part, as set forth in such written request, of any amounts that would otherwise be payable to the Holder in such Subsequent Placement
Optional Redemption, on a dollar-for-dollar basis, against the purchase price of the securities to be purchased by the Holder in such
Eligible Subsequent Placement.
(b) Mechanics.
Each Subsequent Placement Optional Redemption Notice shall indicate that all, or such applicable portion, as set forth in the applicable
Subsequent Placement Optional Redemption Notice, of the Eligible Subsequent Placement Optional Redemption Amount the Holder is electing
to have redeemed (the “Subsequent Placement Optional Redemption Amount”) and the date of such Subsequent Placement
Optional Redemption (the “Subsequent Placement Optional Redemption Date”), which shall be the later of (x) the
fifth (5th) Business Day after the date of the applicable Subsequent Placement Optional Redemption Notice and (y) the
date of the consummation of such Eligible Subsequent Placement. The portion of the Outstanding Value of this Note subject to redemption
pursuant to this Section 9 shall be redeemed by the Company in cash at a price equal to 110% of the Subsequent Placement Optional
Redemption Amount (the “Subsequent Placement Optional Redemption Price”). Redemptions required by this Section 9
shall be made in accordance with the provisions of Section 13.
11. NONCIRCUMVENTION.
The Company hereby covenants and agrees that the Company will not, by amendment of its Articles of Association (as defined in the Securities
Purchase Agreement), Memorandum of Association (as defined in the Securities Purchase Agreement) or through any reorganization, transfer
of assets, consolidation, merger, scheme of arrangement, dissolution, issue or sale of securities, or any other voluntary action, avoid
or seek to avoid the observance or performance of any of the terms of this Note, and will at all times in good faith carry out all of
the provisions of this Note and take all action as may be required to protect the rights of the Holder of this Note. Without limiting
the generality of the foregoing or any other provision of this Note or the other Transaction Documents, the Company (a) shall not
increase the par value of any Ordinary Shares receivable upon conversion of this Note above the Conversion Price then in effect, and
(b) shall take all such actions as may be necessary or appropriate in order that the Company may validly and legally issue fully
paid and nonassessable Ordinary Shares upon the conversion of this Note. Notwithstanding anything herein to the contrary, if after the
six (6) month anniversary of the Issuance Date, the Holder is not permitted to convert this Note in full for any reason (other than
pursuant to restrictions set forth in Section 3(d) hereof), the Company shall use its best efforts to promptly remedy such
failure, including, without limitation, obtaining such consents or approvals as necessary to permit such conversion into Ordinary Shares.
12. RESERVATION
OF AUTHORIZED SHARES.
(a) Reservation.
Within ninety (90) calendar days from and after the date of the Issuance Date, and for so long thereafter as any Notes remain outstanding,
the Company shall reserve at least 200% of the number of Ordinary Shares as shall from time to time be necessary to effect the conversion,
including without limitation, Amortization Conversions, Alternate Conversions and Accelerations, of all of the Notes then outstanding
(without regard to any limitations on conversions and assuming such Notes remain outstanding until the Maturity Date) at the Alternate
Conversion Price then in effect (the “Required Reserve Amount”). The Required Reserve Amount (including, without limitation,
each increase in the number of shares so reserved) shall be allocated pro rata among the holders of the Notes based on the original principal
amount of the Notes held by each holder on the Closing Date or increase in the number of reserved shares, as the case may be (the “Authorized
Share Allocation”). In the event that a holder shall sell or otherwise transfer any of such holder’s Notes, each transferee
shall be allocated a pro rata portion of such holder’s Authorized Share Allocation. Any Ordinary Shares reserved and allocated
to any Person which ceases to hold any Notes shall be allocated to the remaining holders of Notes, pro rata based on the principal amount
of the Notes then held by such holders.
(b) Insufficient
Authorized Shares. If, notwithstanding Section 12(a), and not in limitation thereof, at any time while any of the Notes remain
outstanding the Company does not have a sufficient number of authorized and unreserved Ordinary Shares to satisfy its obligation to reserve
for issuance upon conversion of the Notes at least a number of Ordinary Shares equal to the Required Reserve Amount (an “Authorized
Share Failure”), then the Company shall immediately take all action necessary to increase the Company’s authorized Ordinary
Shares to an amount sufficient to allow the Company to reserve the Required Reserve Amount for the Notes then outstanding. Without limiting
the generality of the foregoing sentence, as soon as practicable after the date of the occurrence of an Authorized Share Failure, but
in no event later than seventy-five (75) days after the occurrence of such Authorized Share Failure, the Company shall hold a meeting
of its shareholders for the approval of an increase in the number of authorized Ordinary Shares. In connection with such meeting, the
Company shall provide each shareholder with a proxy statement and shall use its best efforts to solicit its shareholders’ approval
of such increase in authorized Ordinary Shares and to cause its board of directors to recommend to the shareholders that they approve
such proposal. In the event that the Company is prohibited from issuing Ordinary Shares pursuant to the terms of this Note due to the
failure by the Company to have sufficient Ordinary Shares available out of the authorized but unissued Ordinary Shares (such unavailable
number of Ordinary Shares, the “Authorized Failure Shares”), in lieu of delivering such Authorized Failure Shares
to the Holder, the Company shall pay cash in exchange for the redemption of such portion of the Conversion Amount convertible into such
Authorized Failure Shares at a price equal to the sum of (i) the product of (x) such number of Authorized Failure Shares and
(y) the greatest Closing Sale Price of the Ordinary Shares on any Trading Day during the period commencing on the date the Holder
delivers the applicable Conversion Notice with respect to such Authorized Failure Shares to the Company and ending on the date of such
issuance and payment under this Section 12(a); and (ii) to the extent the Holder purchases (in an open market transaction or
otherwise) Ordinary Shares to deliver in satisfaction of a sale by the Holder of Authorized Failure Shares, any brokerage commissions
and other out-of-pocket expenses, if any, of the Holder incurred in connection therewith. Nothing contained in Section 12(a) or
this Section 12(b) shall limit any obligations of the Company under any provision of the Securities Purchase Agreement.
13. REDEMPTIONS.
(a) Mechanics.
The Company shall deliver the applicable Event of Default Redemption Price to the Holder in cash within five (5) Business Days after
the Company’s receipt of the Holder’s Event of Default Redemption Notice. If the Holder has submitted a Change of Control
Redemption Notice in accordance with Section 5(b), the Company shall deliver the applicable Change of Control Redemption Price to
the Holder in cash concurrently with the consummation of such Change of Control if such notice is received prior to the consummation
of such Change of Control and within five (5) Business Days after the Company’s receipt of such notice otherwise. The Company
shall deliver the applicable Company Optional Redemption Price to the Holder in cash on the applicable Company Optional Redemption Date.
The Company shall deliver the applicable Amortization Price to the Holder in cash on the applicable Amortization Date. The Company shall
deliver the applicable Subsequent Placement Optional Redemption Price to the Holder in cash on the applicable Subsequent Placement Optional
Redemption Date. Notwithstanding anything herein to the contrary, in connection with any redemption hereunder at a time the Holder is
entitled to receive a cash payment under any of the other Transaction Documents, at the option of the Holder delivered in writing to
the Company, the applicable Redemption Price hereunder shall be increased by the amount of such cash payment owed to the Holder under
such other Transaction Document and, upon payment in full or conversion in accordance herewith, shall satisfy the Company’s payment
obligation under such other Transaction Document. In the event of a redemption of less than all of the Conversion Amount of this Note,
the Company shall promptly cause to be issued and delivered to the Holder a new Note (in accordance with Section 20(d)) representing
the outstanding Principal which has not been redeemed. In the event that the Company does not pay the applicable Redemption Price to
the Holder within the time period required, at any time thereafter and until the Company pays such unpaid Redemption Price in full, the
Holder shall have the option, in lieu of redemption, to require the Company to promptly return to the Holder all or any portion of this
Note representing the Conversion Amount that was submitted for redemption and for which the applicable Redemption Price (together with
any Late Charges thereon) has not been paid. Upon the Company’s receipt of such notice, (x) the applicable Redemption Notice
shall be null and void with respect to such Conversion Amount, (y) the Company shall immediately return this Note, or issue a new
Note (in accordance with Section 20(d)), to the Holder, and in each case the principal amount of this Note or such new Note
(as the case may be) shall be increased by an amount equal to the difference between (1) the applicable Redemption Price (as the
case may be, and as adjusted pursuant to this Section 13, if applicable) minus (2) the Principal portion of the Conversion
Amount submitted for redemption and (z) the Conversion Price of this Note or such new Notes (as the case may be) shall be automatically
adjusted with respect to each conversion effected thereafter by the Holder to the lowest of (A) the Conversion Price as in effect
on the date on which the applicable Redemption Notice is voided, (B) the greater of (x) the Floor Price and (y) 75% of
the lowest Closing Bid Price of the Ordinary Shares during the period beginning on and including the date on which the applicable Redemption
Notice is delivered to the Company and ending on and including the date on which the applicable Redemption Notice is voided and (C) the
greater of (x) the Floor Price and (y) 75% of the quotient of (I) the sum of the five (5) lowest VWAPs of the Ordinary
Shares during the twenty (20) consecutive Trading Day period ending and including the applicable Conversion Date divided by (II) five
(5) (it being understood and agreed that all such determinations shall be appropriately adjusted for any share dividend, share split,
share combination or other similar transaction during such period). The Holder’s delivery of a notice voiding a Redemption Notice
and exercise of its rights following such notice shall not affect the Company’s obligations to make any payments of Late Charges
which have accrued prior to the date of such notice with respect to the Conversion Amount subject to such notice.
(b) Redemption
by Other Holders. Upon the Company’s receipt of notice from any of the holders of the Other Notes for redemption or repayment
as a result of an event or occurrence substantially similar to the events or occurrences described in Section 4(b) or Section 5(b) (each,
an “Other Redemption Notice”), the Company shall immediately, but no later than one (1) Business Day of its receipt
thereof, forward to the Holder by electronic mail a copy of such notice. If the Company receives a Redemption Notice and one or more
Other Redemption Notices, during the seven (7) Business Day period beginning on and including the date which is two (2) Business
Days prior to the Company’s receipt of the Holder’s applicable Redemption Notice and ending on and including the date which
is two (2) Business Days after the Company’s receipt of the Holder’s applicable Redemption Notice and the Company is
unable to redeem all principal, interest and other amounts designated in such Redemption Notice and such Other Redemption Notices received
during such seven (7) Business Day period, then the Company shall redeem a pro rata amount from each holder of the Notes (including
the Holder) based on the principal amount of the Notes submitted for redemption pursuant to such Redemption Notice and such Other Redemption
Notices received by the Company during such seven (7) Business Day period.
14. VOTING
RIGHTS. The Holder shall have no voting rights as the holder of this Note, except as required by law and as expressly provided in
this Note.
15. COVENANTS.
Until all of the Notes have been converted, redeemed or otherwise satisfied in accordance with their terms:
(a) Rank.
All payments due under this Note (a) shall rank pari passu with all Other Notes and (b) shall be senior to all other
Indebtedness of the Company and its Subsidiaries (other than Permitted Equipment Indebtedness solely with respect to the Permitted Lien
with respect thereto).
(b) Incurrence
of Indebtedness. The Company shall not, and the Company shall cause each of its Subsidiaries to not, directly or indirectly, incur
or guarantee, assume or suffer to exist any Indebtedness (other than (i) the Indebtedness evidenced by this Note and the Other Notes
and (ii) other Permitted Indebtedness).
(c) Existence
of Liens. The Company shall not, and the Company shall cause each of its Subsidiaries to not, directly or indirectly, allow or suffer
to exist any mortgage, lien, pledge, charge, security interest or other encumbrance upon or in any property or assets (including accounts
and contract rights) owned by the Company or any of its Subsidiaries (collectively, “Liens”) other than Permitted
Liens.
(d) Restricted
Payments and Investments. The Company shall not, and the Company shall cause each of its Subsidiaries to not, directly or indirectly,
redeem, defease, repurchase, repay or make any payments in respect of, by the payment of cash or cash equivalents (in whole or in part,
whether by way of open market purchases, tender offers, private transactions or otherwise), all or any portion of any Indebtedness (other
than the Notes) whether by way of payment in respect of principal of (or premium, if any) or interest on, such Indebtedness or make any
Investment, as applicable, if at the time such payment with respect to such Indebtedness and/or Investment, as applicable, is due or
is otherwise made or, after giving effect to such payment, (i) an event constituting an Event of Default has occurred and is continuing
or (ii) an event that with the passage of time and without being cured would constitute an Event of Default has occurred and is
continuing.
(e) Restriction
on Redemption and Cash Dividends. The Company shall not, and the Company shall cause each of its Subsidiaries to not, directly or
indirectly, redeem, repurchase or declare or pay any cash dividend or distribution on any of its share capital.
(f) Restriction
on Transfer of Assets. The Company shall not, and the Company shall cause each of its Subsidiaries to not, directly or indirectly,
sell, lease, license, assign, transfer, spin-off, split-off, close, convey or otherwise dispose of any assets or rights of the Company
or any Subsidiary owned or hereafter acquired whether in a single transaction or a series of related transactions, other than (i) sales,
leases, licenses, assignments, transfers, conveyances and other dispositions of such assets or rights by the Company and its Subsidiaries
in the ordinary course of business consistent with its past practice and (ii) sales of inventory and product (including but not
limited to Bitcoins produced by the Company and its Subsidiaries) in the ordinary course of business.
(g) Maturity
of Indebtedness. The Company shall not, and the Company shall cause each of its Subsidiaries to not, directly or indirectly, permit
any Indebtedness of the Company or any of its Subsidiaries to mature or accelerate prior to the Maturity Date.
(h) Change
in Nature of Business. The Company shall not, and the Company shall cause each of its Subsidiaries to not, directly or indirectly,
engage in any material line of business substantially different from those lines of business conducted by or publicly contemplated to
be conducted by the Company and each of its Subsidiaries on the Subscription Date or any business substantially related or incidental
thereto. The Company shall not, and the Company shall cause each of its Subsidiaries to not, directly or indirectly, modify its or their
corporate structure or purpose.
(i) Preservation
of Existence, Etc. The Company shall maintain and preserve, and cause each of its Subsidiaries to maintain and preserve, its existence,
rights and privileges, and become or remain, and cause each of its Subsidiaries to become or remain, duly qualified and in good standing
in each jurisdiction in which the character of the properties owned or leased by it or in which the transaction of its business makes
such qualification necessary.
(j) Maintenance
of Properties, Etc. The Company shall maintain and preserve, and cause each of its Subsidiaries to maintain and preserve, all of
its properties which are necessary or useful in the proper conduct of its business in good working order and condition, ordinary wear
and tear excepted, and comply, and cause each of its Subsidiaries to comply, at all times with the provisions of all leases to which
it is a party as lessee or under which it occupies property, so as to prevent any loss or forfeiture thereof or thereunder.
(k) Maintenance
of Intellectual Property. The Company will, and will cause each of its Subsidiaries to, take all action necessary or advisable to
maintain all of the Intellectual Property Rights (as defined in the Securities Purchase Agreement) of the Company and/or any of its Subsidiaries
that are necessary or material to the conduct of its business in full force and effect.
(l) Maintenance
of Insurance. The Company shall maintain, and cause each of its Subsidiaries to maintain director and officer’s insurance with
responsible and reputable insurance companies or associations in at least an aggregate amount of $1,000,000 (the “Required D&O
Insurance”).
(m) Transactions
with Affiliates. The Company shall not, nor shall it permit any of its Subsidiaries to, enter into, renew, extend or be a party to,
any transaction or series of related transactions (including, without limitation, the purchase, sale, lease, transfer or exchange of
property or assets of any kind or the rendering of services of any kind) with any affiliate, except transactions in the ordinary course
of business in a manner and to an extent consistent with past practice and necessary or desirable for the prudent operation of its business,
for fair consideration and on terms no less favorable to it or its Subsidiaries than would be obtainable in a comparable arm’s
length transaction with a Person that is not an affiliate thereof, including but not limited to clause (iv) of the definition of
the Permitted Indebtedness.
(n) Restricted
Issuances. The Company shall not, directly or indirectly, without the prior written consent of the holders of a majority in aggregate
principal amount of the Notes then outstanding, (i) issue any Notes (other than as contemplated by the Securities Purchase Agreement
and the Notes) or (ii) issue any other securities that would cause a breach or default under the Notes or the Warrants.
(o) New
Subsidiaries. Simultaneously with the acquisition or formation of each New Subsidiary, the Company shall cause such New Subsidiary
to execute, and deliver to each holder of Notes, all Security Documents (as defined in the Securities Purchase Agreement) and Guaranties
(as defined in the Securities Purchase Agreement) as requested by the Collateral Agent or the Required Holders, as applicable. The Company
shall also deliver to the Collateral Agent an opinion of counsel to such New Subsidiary that is reasonably satisfactory to the Collateral
Agent and the Required Holders covering such legal matters with respect to such New Subsidiary becoming a guarantor of the Company’s
obligations, executing and delivering the Security Document and the Guaranties and any other matters that the Collateral Agent or the
Required Holders may reasonably request. The Company shall deliver, or cause the applicable Subsidiary to deliver to the Collateral Agent,
each of the physical share certificates of such New Subsidiary, along with undated share powers for each such certificates, executed
in blank (or, if any such shares of share capital are uncertificated, confirmation and evidence reasonably satisfactory to the Collateral
Agent and the Required Holders that the security interest in such uncertificated securities has been transferred to and perfected by
the Collateral Agent, in accordance with Sections 8-313, 8-321 and 9-115 of the Uniform Commercial Code or any other similar or local
or foreign law that may be applicable).
(p) Change
in Collateral; Collateral Records. The Company shall (i) give the Collateral Agent not less than thirty (30) days’ prior
written notice of any change in the location of any Collateral (as defined in the Security Documents), other than to locations set forth
in the Perfection Certificate (as defined in the Securities Purchase Agreement) hereto and with respect to which the Collateral Agent
has filed financing statements and otherwise fully perfected its Liens thereon, (ii) advise the Collateral Agent promptly, in sufficient
detail, of any material adverse change relating to the type, quantity or quality of the Collateral or the Lien granted thereon and (iii) execute
and deliver, and cause each of its Subsidiaries to execute and deliver, to the Collateral Agent for the benefit of the Holder and holders
of the Other Notes from time to time, solely for the Collateral Agent’s convenience in maintaining a record of Collateral, such
written statements and schedules as the Collateral Agent or any Holder may reasonably require, designating, identifying or describing
the Collateral.
(q) Stay,
Extension and Usury Laws. To the extent that it may lawfully do so, the Company (A) agrees that it will not at any time insist
upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law (wherever or whenever
enacted or in force) that may affect the covenants or the performance of this Note; and (B) expressly waives all benefits or advantages
of any such law and agrees that it will not, by resort to any such law, hinder, delay or impede the execution of any power granted to
the Holder by this Note, but will suffer and permit the execution of every such power as though no such law has been enacted.
(r) Taxes.
The Company and its Subsidiaries shall pay when due all taxes, fees or other charges of any nature whatsoever (together with any related
interest or penalties) now or hereafter imposed or assessed against the Company and its Subsidiaries or their respective assets or upon
their ownership, possession, use, operation or disposition thereof or upon their rents, receipts or earnings arising therefrom (except
where the failure to pay would not, individually or in the aggregate, have a material effect on the Company or any of its Subsidiaries
). The Company and its Subsidiaries shall file on or before the due date therefor all personal property tax returns (except where the
failure to file would not, individually or in the aggregate, have a material effect on the Company or any of its Subsidiaries). Notwithstanding
the foregoing, the Company and its Subsidiaries may contest, in good faith and by appropriate proceedings, taxes for which they maintain
adequate reserves therefor in accordance with GAAP.
(s) Available
Cash Test; Announcement of Operating Results.
(i) Available
Cash Test. Commencing on March 1, 2024, and at any time thereafter any Notes remains outstanding, the Company’s Available
Cash and Bitcoin produced by the Company and its Subsidiaries (excluding any Bitcoin pledged pursuant to any other Indebtedness (other
than the Notes)) as of the last calendar day in each Fiscal Quarter (each, a “Covenant Measuring Date”) shall equal
or exceed $600,000 (the “Available Cash Test”).
(ii) Minimum
Revenue. Commencing on March 1, 2024, and at any time thereafter any Notes remains outstanding, the Company’s Revenue
for the quarter as of each Covenant Measuring Date shall equal or exceed $1,500,000 (the “Revenue Test”, and together
with the Available Cash Test, each a “Financial Test”):
(iii) Operating
Results Announcement. On each Covenant Measuring Date, commencing on, and including, March 31, 2024, the Company shall publicly
disclose and disseminate (such date, the “Announcement Date”), if any Financial Test has not been satisfied for such
Fiscal Quarter or Fiscal Year, as applicable, a statement to that effect no later than the tenth (10th) day after the end
of such Fiscal Quarter or Fiscal Year, as applicable, and such announcement shall include a statement to the effect that the Company
is (or is not, as applicable) in breach of a Financial Test for such Fiscal Quarter or Fiscal Year, as applicable. On the Announcement
Date, the Company shall also provide to the Holder a certification, executed on behalf of the Company by the Chief Financial Officer
of the Company, certifying that the Company satisfied the Financial Tests for such Fiscal Quarter or Fiscal Year, as applicable, if that
is the case. If the Company has failed to meet one or more Financial Tests for a Fiscal Quarter or Fiscal Year, as applicable, (each
a “Financial Covenant Failure”), on or prior to the Announcement Date, the Company shall provide to the Holders a
written certification, executed on behalf of the Company by the Chief Financial Officer of the Company, certifying that such Financial
Test(s) has not been met for such Fiscal Quarter or Fiscal Year, as applicable (a “Financial Covenant Failure Notice”).
Concurrently with the delivery of each Financial Covenant Failure Notice to the Holders, the Company shall also make publicly available
(as part of a Quarterly Report on Form 10-Q, Annual Report on Form 10-K or on a Current Report on Form 8-K, or otherwise)
the Financial Covenant Failure Notice and the fact that an Event of Default has occurred under the Notes.
(t) Independent
Investigation. At the request of the Holder either (x) at any time when an Event of Default has occurred and is continuing,
(y) upon the occurrence of an event that with the passage of time or giving of notice would constitute an Event of Default or (z) at
any time the Holder reasonably believes an Event of Default may have occurred or be continuing, the Company shall hire an independent,
reputable investment bank selected by the Company and approved by the Holder to investigate as to whether any breach of this Note has
occurred (the “Independent Investigator”). If the Independent Investigator determines that such breach of this Note
has occurred, the Independent Investigator shall notify the Company of such breach and the Company shall deliver written notice to each
holder of a Note of such breach. In connection with such investigation, the Independent Investigator may, during normal business hours,
inspect all contracts, books, records, personnel, offices and other facilities and properties of the Company and its Subsidiaries and,
to the extent available to the Company after the Company uses reasonable efforts to obtain them, the records of its legal advisors and
accountants (including the accountants’ work papers) and any books of account, records, reports and other papers not contractually
required of the Company to be confidential or secret, or subject to attorney-client or other evidentiary privilege, and the Independent
Investigator may make such copies and inspections thereof as the Independent Investigator may reasonably request. The Company shall furnish
the Independent Investigator with such financial and operating data and other information with respect to the business and properties
of the Company as the Independent Investigator may reasonably request. The Company shall permit the Independent Investigator to discuss
the affairs, finances and accounts of the Company with, and to make proposals and furnish advice with respect thereto to, the Company’s
officers, directors, key employees and independent public accountants or any of them (and by this provision the Company authorizes said
accountants to discuss with such Independent Investigator the finances and affairs of the Company and any Subsidiaries), all at such
reasonable times, upon reasonable notice, and as often as may be reasonably requested. If a breach of this Note or any other Transaction
Documents exists (or the Independent Investigator reasonably determines that the Holder has a reasonable basis to believe a breach of
this Note or any other Transaction Documents existed), the Company shall be responsible for the reasonable fees and expenses of such
Independent Investigator. If a breach of this Note or any other Transaction Documents does not exist and the Independent Investigator
reasonably determines that the Holder did not have reasonable basis to believe a breach of this Note or any other Transaction Documents
existed, the Holder shall be responsible for the reasonable fees and expenses of such Independent Investigator.
16. SECURITY.
This Note and the Other Notes are secured to the extent and in the manner set forth in the Transaction Documents (including, without
limitation, the Security Agreement, the other Security Documents and the Guaranties).
17. DISTRIBUTION
OF ASSETS. In addition to any adjustments pursuant to Sections 6 and 7, if the Company shall declare or make any dividend or other
distributions of its assets (or rights to acquire its assets) to any or all holders of Ordinary Shares, by way of return of capital or
otherwise (including without limitation, any distribution of cash, shares or other securities, property or options by way of a dividend,
spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (the “Distributions”),
then the Holder will be entitled to such Distributions as if the Holder had held the number of Ordinary Shares acquirable upon complete
conversion of this Note (without taking into account any limitations or restrictions on the convertibility of this Note and assuming
for such purpose that the Note was converted at the Alternate Conversion Price as of the applicable record date) immediately prior to
the date on which a record is taken for such Distribution or, if no such record is taken, the date as of which the record holders of
Ordinary Shares are to be determined for such Distributions (provided, however, that to the extent that the Holder’s right to participate
in any such Distribution would result in the Holder and the other Attribution Parties exceeding the Maximum Percentage, then the Holder
shall not be entitled to participate in such Distribution to the extent of the Maximum Percentage (and shall not be entitled to beneficial
ownership of such Ordinary Shares as a result of such Distribution (and beneficial ownership) to the extent of any such excess) and the
portion of such Distribution shall be held in abeyance for the benefit of the Holder until such time or times, if ever, as its right
thereto would not result in the Holder and the other Attribution Parties exceeding the Maximum Percentage, at which time or times the
Holder shall be granted such Distribution (and any Distributions declared or made on such initial Distribution or on any subsequent Distribution
held similarly in abeyance) to the same extent as if there had been no such limitation).
18. AMENDING
THE TERMS OF THIS NOTE. Except for Section 3(d), which may not be amended, modified or waived by the parties hereto, the prior
written consent of the Holder shall be required for any change, waiver or amendment to this Note.
19. TRANSFER.
This Note and any Ordinary Shares issued upon conversion of this Note may be offered, sold, assigned or transferred by the Holder without
the consent of the Company, subject only to the provisions of Section 2(g) of the Securities Purchase Agreement.
20. REISSUANCE
OF THIS NOTE.
(a) Transfer.
If this Note is to be transferred, the Holder shall surrender this Note to the Company, whereupon the Company will forthwith issue and
deliver upon the order of the Holder a new Note (in accordance with Section 20(d)), registered as the Holder may request, representing
the outstanding Principal being transferred by the Holder and, if less than the entire outstanding Principal is being transferred, a
new Note (in accordance with Section 20(d)) to the Holder representing the outstanding Principal not being transferred. The Holder
and any assignee, by acceptance of this Note, acknowledge and agree that, by reason of the provisions of Section 3(c)(iii) following
conversion or redemption of any portion of this Note, the outstanding Principal represented by this Note may be less than the Principal
stated on the face of this Note.
(b) Lost,
Stolen or Mutilated Note. Upon receipt by the Company of evidence reasonably satisfactory to the Company of the loss, theft, destruction
or mutilation of this Note (as to which a written certification and the indemnification contemplated below shall suffice as such evidence),
and, in the case of loss, theft or destruction, of any indemnification undertaking by the Holder to the Company in customary and reasonable
form and, in the case of mutilation, upon surrender and cancellation of this Note, the Company shall execute and deliver to the Holder
a new Note (in accordance with Section 20(d)) representing the outstanding Principal.
(c) Note
Exchangeable for Different Denominations. This Note is exchangeable, upon the surrender hereof by the Holder at the principal office
of the Company, for a new Note or Notes (in accordance with Section 20(d) and in principal amounts of at least $1,000) representing
in the aggregate the outstanding Principal of this Note, and each such new Note will represent such portion of such outstanding Principal
as is designated by the Holder at the time of such surrender.
(d) Issuance
of New Notes. Whenever the Company is required to issue a new Note pursuant to the terms of this Note, such new Note (i) shall
be of like tenor with this Note, (ii) shall represent, as indicated on the face of such new Note, the Principal remaining outstanding
(or in the case of a new Note being issued pursuant to Section 20(a) or Section 20(c), the Principal designated by the
Holder which, when added to the principal represented by the other new Notes issued in connection with such issuance, does not exceed
the Principal remaining outstanding under this Note immediately prior to such issuance of new Notes), (iii) shall have an issuance
date, as indicated on the face of such new Note, which is the same as the Issuance Date of this Note, (iv) shall have the same rights
and conditions as this Note, and (v) shall represent accrued and unpaid Interest and Late Charges on the Principal and Interest
of this Note, from the Issuance Date.
21. REMEDIES,
CHARACTERIZATIONS, OTHER OBLIGATIONS, BREACHES AND INJUNCTIVE RELIEF. The remedies provided in this Note shall be cumulative and
in addition to all other remedies available under this Note and any of the other Transaction Documents at law or in equity (including
a decree of specific performance and/or other injunctive relief), and nothing herein shall limit the Holder’s right to pursue actual
and consequential damages for any failure by the Company to comply with the terms of this Note. No failure on the part of the Holder
to exercise, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof; nor shall any single
or partial exercise by the Holder of any right, power or remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. In addition, the exercise of any right or remedy of the Holder at law or equity or under this Note or any
of the documents shall not be deemed to be an election of Holder’s rights or remedies under such documents or at law or equity.
The Company covenants to the Holder that there shall be no characterization concerning this instrument other than as expressly provided
herein. Amounts set forth or provided for herein with respect to payments, conversion and the like (and the computation thereof) shall
be the amounts to be received by the Holder and shall not, except as expressly provided herein, be subject to any other obligation of
the Company (or the performance thereof). The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable
harm to the Holder and that the remedy at law for any such breach may be inadequate. The Company therefore agrees that, in the event
of any such breach or threatened breach, the Holder shall be entitled, in addition to all other available remedies, to specific performance
and/or temporary, preliminary and permanent injunctive or other equitable relief from any court of competent jurisdiction in any such
case without the necessity of proving actual damages and without posting a bond or other security. The Company shall provide all information
and documentation to the Holder that is requested by the Holder to enable the Holder to confirm the Company’s compliance with the
terms and conditions of this Note (including, without limitation, compliance with Section 7).
22. PAYMENT
OF COLLECTION, ENFORCEMENT AND OTHER COSTS. If (a) this Note is placed in the hands of an attorney for collection or enforcement
or is collected or enforced through any legal proceeding or the Holder otherwise takes action to collect amounts due under this Note
or to enforce the provisions of this Note or (b) there occurs any bankruptcy, reorganization, receivership of the Company or other
proceedings affecting Company creditors’ rights and involving a claim under this Note, then the Company shall pay the costs incurred
by the Holder for such collection, enforcement or action or in connection with such bankruptcy, reorganization, receivership or other
proceeding, including, without limitation, attorneys’ fees and disbursements. The Company expressly acknowledges and agrees that
no amounts due under this Note shall be affected, or limited, by the fact that the purchase price paid for this Note was less than the
original Principal amount hereof.
23. CONSTRUCTION;
HEADINGS. This Note shall be deemed to be jointly drafted by the Company and the initial Holder and shall not be construed against
any such Person as the drafter hereof. The headings of this Note are for convenience of reference and shall not form part of, or affect
the interpretation of, this Note. Unless the context clearly indicates otherwise, each pronoun herein shall be deemed to include the
masculine, feminine, neuter, singular and plural forms thereof. The terms “including,” “includes,” “include”
and words of like import shall be construed broadly as if followed by the words “without limitation.” The terms “herein,”
“hereunder,” “hereof” and words of like import refer to this entire Note instead of just the provision in which
they are found. Unless expressly indicated otherwise, all section references are to sections of this Note. Terms used in this Note and
not otherwise defined herein, but defined in the other Transaction Documents, shall have the meanings ascribed to such terms on the Closing
Date in such other Transaction Documents unless otherwise consented to in writing by the Holder.
24. FAILURE
OR INDULGENCE NOT WAIVER. No failure or delay on the part of the Holder in the exercise of any power, right or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other right, power or privilege. No waiver shall be effective unless it is in writing and signed by an authorized
representative of the waiving party. Notwithstanding the foregoing, nothing contained in this Section 24 shall permit any waiver
of any provision of Section 3(d).
25. DISPUTE
RESOLUTION.
(a) Submission
to Dispute Resolution.
(i) In
the case of a dispute relating to a Closing Bid Price, a Closing Sale Price, a Conversion Price, an Interest Conversion Price, an Amortization
Conversion price, an Alternate Conversion Price, a VWAP or a fair market value or the arithmetic calculation of a Conversion Rate or
the applicable Redemption Price (as the case may be) (including, without limitation, a dispute relating to the determination of any of
the foregoing), the Company or the Holder (as the case may be) shall submit the dispute to the other party via electronic mail (A) if
by the Company, within two (2) Business Days after the occurrence of the circumstances giving rise to such dispute or (B) if
by the Holder at any time after the Holder learned of the circumstances giving rise to such dispute. If the Holder and the Company are
unable to promptly resolve such dispute relating to such Closing Bid Price, such Closing Sale Price, such Conversion Price, such Interest
Conversion Price, such Amortization Conversion Price, such Alternate Conversion Price, such VWAP or such fair market value, or the arithmetic
calculation of such Conversion Rate or such applicable Redemption Price (as the case may be), at any time after the second (2nd)
Business Day following such initial notice by the Company or the Holder (as the case may be) of such dispute to the Company or the Holder
(as the case may be), then the Holder may, at its sole option, select an independent, reputable investment bank to resolve such dispute.
(ii) The
Holder and the Company shall each deliver to such investment bank (A) a copy of the initial dispute submission so delivered in accordance
with the first sentence of this Section 25 and (B) written documentation supporting its position with respect to such dispute,
in each case, no later than 5:00 p.m. (New York time) by the fifth (5th) Business Day immediately following the date
on which the Holder selected such investment bank (the “Dispute Submission Deadline”) (the documents referred to in
the immediately preceding clauses (A) and (B) are collectively referred to herein as the “Required Dispute Documentation”)
(it being understood and agreed that if either the Holder or the Company fails to so deliver all of the Required Dispute Documentation
by the Dispute Submission Deadline, then the party who fails to so submit all of the Required Dispute Documentation shall no longer be
entitled to (and hereby waives its right to) deliver or submit any written documentation or other support to such investment bank with
respect to such dispute and such investment bank shall resolve such dispute based solely on the Required Dispute Documentation that was
delivered to such investment bank prior to the Dispute Submission Deadline). Unless otherwise agreed to in writing by both the Company
and the Holder or otherwise requested by such investment bank, neither the Company nor the Holder shall be entitled to deliver or submit
any written documentation or other support to such investment bank in connection with such dispute (other than the Required Dispute Documentation).
(iii) The
Company and the Holder shall cause such investment bank to determine the resolution of such dispute and notify the Company and the Holder
of such resolution no later than ten (10) Business Days immediately following the Dispute Submission Deadline. The fees and expenses
of such investment bank shall be borne solely by the Company, and such investment bank’s resolution of such dispute shall be final
and binding upon all parties absent manifest error.
(b) Miscellaneous.
The Company expressly acknowledges and agrees that (i) this Section 25 constitutes an agreement to arbitrate between the Company
and the Holder (and constitutes an arbitration agreement) under the New York State arbitration law, (ii) a dispute relating to a
Conversion Price includes, without limitation, disputes as to (A) whether an issuance or sale or deemed issuance or sale of Ordinary
Shares occurred under Section 7(a), (B) the consideration per share at which an issuance or deemed issuance of Ordinary Shares
occurred, (C) whether any issuance or sale or deemed issuance or sale of Ordinary Shares was an issuance or sale or deemed issuance
or sale of Excluded Securities, (D) whether an agreement, instrument, security or the like constitutes and Option or Convertible
Security and (E) whether a Dilutive Issuance occurred, (iii) the terms of this Note and each other applicable Transaction Document
shall serve as the basis for the selected investment bank’s resolution of the applicable dispute, such investment bank shall be
entitled (and is hereby expressly authorized) to make all findings, determinations and the like that such investment bank determines
are required to be made by such investment bank in connection with its resolution of such dispute and in resolving such dispute such
investment bank shall apply such findings, determinations and the like to the terms of this Note and any other applicable Transaction
Documents, (iv) the Holder (and only the Holder), in its sole discretion, shall have the right to submit any dispute described in
this Section 25 to any state or federal court sitting in The City of New York, Borough of Manhattan in lieu of utilizing the procedures
set forth in this Section 25 and (v) nothing in this Section 25 shall limit the Holder from obtaining any injunctive relief
or other equitable remedies (including, without limitation, with respect to any matters described in this Section 25).
26. NOTICES;
CURRENCY; PAYMENTS.
(a) Notices.
Whenever notice is required to be given under this Note, unless otherwise provided herein, such notice shall be given in accordance with
Section 9(f) of the Securities Purchase Agreement. The Company shall provide the Holder with prompt written notice of all actions
taken pursuant to this Note, including in reasonable detail a description of such action and the reason therefore. Without limiting the
generality of the foregoing, the Company will give written notice to the Holder (i) immediately upon any adjustment of the Conversion
Price, setting forth in reasonable detail, and certifying, the calculation of such adjustment and (ii) at least fifteen (15) days
prior to the date on which the Company closes its books or takes a record (A) with respect to any dividend or distribution upon
the Ordinary Shares, (B) with respect to any grant, issuances, or sales of any Options, Convertible Securities or rights to purchase
shares, warrants, securities or other property to holders of Ordinary Shares or (C) for determining rights to vote with respect
to any Fundamental Transaction, dissolution or liquidation, provided in each case that such information shall be made known to the public
prior to or in conjunction with such notice being provided to the Holder.
(b) Currency.
All dollar amounts referred to in this Note are in United States Dollars (“U.S. Dollars”), and all amounts owing under
this Note shall be paid in U.S. Dollars. All amounts denominated in other currencies (if any) shall be converted into the U.S. Dollar
equivalent amount in accordance with the Exchange Rate on the date of calculation. “Exchange Rate” means, in relation
to any amount of currency to be converted into U.S. Dollars pursuant to this Note, the U.S. Dollar exchange rate as published in the
Wall Street Journal on the relevant date of calculation (it being understood and agreed that where an amount is calculated with reference
to, or over, a period of time, the date of calculation shall be the final date of such period of time).
(c) Payments.
Whenever any payment of cash is to be made by the Company to any Person pursuant to this Note, unless otherwise expressly set forth herein,
such payment shall be made in lawful money of the United States of America by a certified check drawn on the account of the Company and
sent via overnight courier service to such Person at such address as previously provided to the Company in writing (which address, in
the case of each of the Buyers, shall initially be as set forth on the Schedule of Buyers attached to the Securities Purchase Agreement),
provided that the Holder may elect to receive a payment of cash via wire transfer of immediately available funds by providing the Company
with prior written notice setting out such request and the Holder’s wire transfer instructions. Whenever any amount expressed to
be due by the terms of this Note is due on any day which is not a Business Day, the same shall instead be due on the next succeeding
day which is a Business Day. Any amount of Principal or other amounts due under the Transaction Documents which is not paid when due
shall result in a late charge being incurred and payable by the Company in an amount equal to interest on such amount at the rate of
eighteen percent (18%) per annum from the date such amount was due until the same is paid in full (“Late Charge”).
27. CANCELLATION.
After all Principal, accrued Interest, Late Charges and other amounts at any time owed on this Note have been paid in full, this Note
shall automatically be deemed canceled, shall be surrendered to the Company for cancellation and shall not be reissued.
28. WAIVER
OF NOTICE. To the extent permitted by law, the Company hereby irrevocably waives demand, notice, presentment, protest and all other
demands and notices in connection with the delivery, acceptance, performance, default or enforcement of this Note and the Securities
Purchase Agreement.
29. GOVERNING
LAW. This Note shall be construed and enforced in accordance with, and all questions concerning the construction, validity, interpretation
and performance of this Note shall be governed by, the internal laws of the State of New York, without giving effect to any choice of
law or conflict of law provision or rule (whether of the State of New York or any other jurisdictions) that would cause the application
of the laws of any jurisdictions other than the State of New York. Except as otherwise required by Section 25 above, the Company
hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in The City of New York, Borough of
Manhattan, for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue
of such suit, action or proceeding is improper. Nothing contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner
permitted by law. Nothing contained herein (i) shall be deemed or operate to preclude the Holder from bringing suit or taking other
legal action against the Company in any other jurisdiction to collect on the Company’s obligations to the Holder, to realize on
any collateral or any other security for such obligations, or to enforce a judgment or other court ruling in favor of the Holder or (ii) shall
limit, or shall be deemed or construed to limit, any provision of Section 25. The Company (on behalf of itself and each of its Subsidiaries)
hereby appoints the Service Agent (as defined in the Securities Purchase Agreement), as its agent for service of process in New York.
THE COMPANY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION
OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS NOTE OR ANY TRANSACTION CONTEMPLATED HEREBY. The choice of
the laws of the State of New York as the governing law of this Note is a valid choice of law and would be recognized and given effect
to in any action brought before a court of competent jurisdiction in the Cayman Islands or such other jurisdiction applicable to the
Company or any of its Subsidiaries except for those laws (i) which such court considers to be procedural in nature, (ii) which
are revenue or penal laws or (iii) the application of which would be inconsistent with public policy, as such term is interpreted
under the laws of the Cayman Islands or such other jurisdiction applicable to the Company or any of its Subsidiaries. The Company or
any of their respective properties, assets or revenues does not have any right of immunity under the laws of the Cayman Islands or such
other jurisdiction applicable to the Company or any of its Subsidiaries or New York law, from any legal action, suit or proceeding, from
the giving of any relief in any such legal action, suit or proceeding, from set-off or counterclaim, from the jurisdiction of any court
of the Cayman Islands or such other jurisdiction applicable to the Company or any of its Subsidiaries or any New York or United States
federal court, from service of process, attachment upon or prior to judgment, or attachment in aid of execution of judgment, or from
execution of a judgment, or other legal process or proceeding for the giving of any relief or for the enforcement of a judgment, in any
such court, with respect to its obligations, liabilities or any other matter under or arising out of or in connection with the Transaction
Documents; and, to the extent that the Company, or any of its properties, assets or revenues may have or may hereafter become entitled
to any such right of immunity in any such court in which proceedings may at any time be commenced, the Company hereby waives such right
to the extent permitted by law and hereby consents to such relief and enforcement as provided in this Note and the other Transaction
Documents.
30. JUDGMENT
CURRENCY.
(a) If
for the purpose of obtaining or enforcing judgment against the Company in any court in any jurisdiction it becomes necessary to convert
into any other currency (such other currency being hereinafter in this Section 30 referred to as the “Judgment Currency”)
an amount due in U.S. dollars under this Note, the conversion shall be made at the Exchange Rate prevailing on the Trading Day immediately
preceding:
(i) the
date actual payment of the amount due, in the case of any proceeding in the courts of New York or in the courts of any other jurisdiction
that will give effect to such conversion being made on such date: or
(ii) the
date on which the foreign court determines, in the case of any proceeding in the courts of any other jurisdiction (the date as of which
such conversion is made pursuant to this Section 30(a)(ii) being hereinafter referred to as the “Judgment Conversion
Date”).
(b) If
in the case of any proceeding in the court of any jurisdiction referred to in Section 30(a)(ii) above, there is a change in
the Exchange Rate prevailing between the Judgment Conversion Date and the date of actual payment of the amount due, the applicable party
shall pay such adjusted amount as may be necessary to ensure that the amount paid in the Judgment Currency, when converted at the Exchange
Rate prevailing on the date of payment, will produce the amount of US dollars which could have been purchased with the amount of Judgment
Currency stipulated in the judgment or judicial order at the Exchange Rate prevailing on the Judgment Conversion Date.
(c) Any
amount due from the Company under this provision shall be due as a separate debt and shall not be affected by judgment being obtained
for any other amounts due under or in respect of this Note.
31. SEVERABILITY.
If any provision of this Note is prohibited by law or otherwise determined to be invalid or unenforceable by a court of competent jurisdiction,
the provision that would otherwise be prohibited, invalid or unenforceable shall be deemed amended to apply to the broadest extent that
it would be valid and enforceable, and the invalidity or unenforceability of such provision shall not affect the validity of the remaining
provisions of this Note so long as this Note as so modified continues to express, without material change, the original intentions of
the parties as to the subject matter hereof and the prohibited nature, invalidity or unenforceability of the provision(s) in question
does not substantially impair the respective expectations or reciprocal obligations of the parties or the practical realization of the
benefits that would otherwise be conferred upon the parties. The parties will endeavor in good faith negotiations to replace the prohibited,
invalid or unenforceable provision(s) with a valid provision(s), the effect of which comes as close as possible to that of the prohibited,
invalid or unenforceable provision(s).
32. MAXIMUM
PAYMENTS. Without limiting Section 9(d) of the Securities Purchase Agreement, nothing contained herein shall be deemed
to establish or require the payment of a rate of interest or other charges in excess of the maximum permitted by applicable law. In the
event that the rate of interest required to be paid or other charges hereunder exceed the maximum permitted by such law, any payments
in excess of such maximum shall be credited against amounts owed by the Company to the Holder and thus refunded to the Company.
33. CERTAIN
DEFINITIONS. For purposes of this Note, the following terms shall have the following meanings:
(a) “1933
Act” means the Securities Act of 1933, as amended, and the rules and regulations thereunder.
(b) “1934
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder.
(c) “Adjustment
Right” means any right granted with respect to any securities issued in connection with, or with respect to, any issuance or
sale (or deemed issuance or sale in accordance with Section 7) of Ordinary Shares (other than rights of the type described in Section 6(a) hereof)
that could result in a decrease in the net consideration received by the Company in connection with, or with respect to, such securities
(including, without limitation, any cash settlement rights, cash adjustment or other similar rights).
(d) “Affiliate”
means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by, or is under common control
with, such Person, it being understood for purposes of this definition that “control” of a Person means the power directly
or indirectly either to vote 10% or more of the shares having ordinary voting power for the election of directors of such Person or direct
or cause the direction of the management and policies of such Person whether by contract or otherwise.
(e) “Alternate
Conversion Floor Amount” means an amount in cash, to be delivered by wire transfer of immediately available funds pursuant
to wire instructions delivered to the Company by the Holder in writing, equal to the product obtained by multiplying (A) the higher
of (I) the highest price that the Ordinary Shares trade at on the Trading Day immediately preceding the relevant Alternate Conversion
Date and (II) the applicable Alternate Conversion Price and (B) the difference obtained by subtracting (I) the number
of Ordinary Shares delivered (or to be delivered) to the Holder on the applicable Share Delivery Deadline with respect to such Alternate
Conversion from (II) the quotient obtained by dividing (x) the applicable Conversion Amount that the Holder has elected to
be the subject of the applicable Alternate Conversion, by (y) the applicable Alternate Conversion Price without giving effect to
clause (x) of such definition.
(f) “Alternate
Conversion Price” means, with respect to any Alternate Conversion that price which shall be the lower of (i) the applicable
Conversion Price as in effect on the applicable Conversion Date of the applicable Alternate Conversion, and (ii) the greater of
(x) the Floor Price then in effect and (y) 85% of the lowest trading price of the Ordinary Shares during the fifteen (15) consecutive
Trading Day period ending and including the Trading Day immediately preceding the delivery or deemed delivery of the applicable Conversion
Notice (such period, the “Alternate Conversion Measuring Period”). All such determinations to be appropriately adjusted
for any share dividend, share split, share combination, reclassification or similar transaction that proportionately decreases or increases
the Ordinary Shares during such Alternate Conversion Measuring Period.
(g) “Amortization
Date” means each of (i) [ ]3, (ii) the
last Trading Day of each calendar month thereafter, and (iii) the Maturity Date.
(h) “Amortization
Amount” means the sum of (A) (i) with respect to any Amortization Date other than the Maturity Date, the greater
of (x) the quotient of (I) the Principal amount outstanding under this Note as of the applicable Amortization Date, divided
by (II) the number of Amortization Dates remaining hereunder (including such applicable Amortization Date) and (y) the Amortization
Base Amount, and (ii) with respect to the Amortization Date that is the Maturity Date, the Principal amount then outstanding under
this Note as of such Amortization Date (in each case, as any such Amortization Amount may be reduced pursuant to the terms of this Note,
whether upon conversion or redemption), and (B) the sum of any accrued and unpaid Interest as of such Amortization Date under this
Note, if any, and accrued and unpaid Late Charges, if any, under this Note as of such Amortization Date. In the event the Holder shall
sell or otherwise transfer any portion of this Note, the transferee shall be allocated a pro rata portion of the each unpaid Amortization
Amount hereunder.
3
Insert the last Trading Day of the calendar month
in which the six month anniversary of the Issuance Date occurs
(i) “Amortization
Base Amount” means (i) with respect to the initial six Amortization Dates, $160,000 and (ii) with respect to each
Amortization Date thereafter, $235,000.
(j) “Amortization
Conversion Floor Amount” means an amount in cash, to be delivered by wire transfer of immediately available funds pursuant
to wire instructions delivered to the Company by the Holder in writing, equal to the product obtained by multiplying (A) the higher
of (I) the highest price that the Ordinary Shares trade at on the Trading Day immediately preceding the relevant Amortization Date
and (II) the applicable Amortization Conversion Price and (B) the difference obtained by subtracting (I) the number of
Ordinary Shares delivered (or to be delivered) to the Holder on the applicable Share Delivery Deadline with respect to such Amortization
Conversion from (II) the quotient obtained by dividing (x) such portion of the Conversion Amount that is to be converted into
Ordinary Shares in such applicable Amortization Conversion, by (y) the applicable Amortization Conversion Price without giving effect
to clause (x) of such definition.
(k) “Amortization
Conversion Price” means, with respect to a particular date of determination, the lower of (i) the Conversion Price then
in effect and (ii) the greater of (x) the Floor Price then in effect and (y) 90% of the lowest VWAP of the Ordinary Shares
during the fifteen (15) consecutive Trading Day period ending and including the Trading Day immediately preceding the applicable Amortization
Date. All such determinations to be appropriately adjusted for any share split, share dividend, share combination or other similar transaction
during any such measuring period.
(l) “Approved
Share Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent
to the Subscription Date pursuant to which Ordinary Shares and standard options to purchase Ordinary Shares may be issued to any employee,
officer or director for services provided to the Company in their capacity as such.
(m) “Attribution
Parties” means, collectively, the following Persons and entities: (i) any investment vehicle, including, any funds, feeder
funds or managed accounts, currently, or from time to time after the Issuance Date, directly or indirectly managed or advised by the
Holder’s investment manager or any of its Affiliates or principals, (ii) any direct or indirect Affiliates of the Holder or
any of the foregoing, (iii) any Person acting or who could be deemed to be acting as a Group together with the Holder or any of
the foregoing and (iv) any other Persons whose beneficial ownership of the Company’s Ordinary Shares would or could be aggregated
with the Holder’s and the other Attribution Parties for purposes of Section 13(d) of the 1934 Act. For clarity, the purpose
of the foregoing is to subject collectively the Holder and all other Attribution Parties to the Maximum Percentage.
(n) “Available
Cash” means, with respect to any date of determination, an amount equal to the aggregate amount of the Cash of the Company
and its Subsidiaries (excluding for this purpose cash held in restricted accounts or otherwise unavailable for unrestricted use by the
Company or any of its Subsidiaries for any reason) as of such date of determination held in bank accounts of financial banking institutions
in the United States of America.
(o) “Bitcoin
Price” means, as of any date of determination, the lowest spot price of Bitcoin (XBT:CUR) on such date of determination as
reported by Bloomberg, or if the foregoing do not apply, the lowest spot price of Bitcoin in the over-the-counter market on the electronic
bulletin board applicable thereto, or, if no spot price exists, the fair market value as mutually determined by the Company and the Holder.
If the Company and the Holder are unable to agree upon the fair market value of such security, then such dispute shall be resolved in
accordance with the procedures in Section 25. All such determinations shall be appropriately adjusted for any share splits, share
dividends, share combinations, recapitalizations or other similar transactions during such period.
(p) “Bloomberg”
means Bloomberg, L.P.
(q) “Business
Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, for clarification, commercial
banks shall not be deemed to be authorized or required by law to remain closed due to “stay at home”, “shelter-in-place”,
“non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the
direction of any governmental authority so long as the electronic funds transfer systems (including for wire transfers) of commercial
banks in The City of New York generally are open for use by customers on such day.
(r) “Cash”
of the Company and its Subsidiaries on any date shall be determined from such Persons’ books maintained in accordance with GAAP,
and means, without duplication, the cash, cash equivalents and Eligible Marketable Securities accrued by the Company and its wholly owned
Subsidiaries on a consolidated basis on such date.
(s) “Change
of Control” means any Fundamental Transaction other than (i) any merger of the Company or any of its, direct or indirect,
wholly-owned Subsidiaries with or into any of the foregoing Persons, (ii) any reorganization, recapitalization or reclassification
of the Ordinary Shares in which holders of the Company’s voting power immediately prior to such reorganization, recapitalization
or reclassification continue after such reorganization, recapitalization or reclassification to hold publicly traded securities and,
directly or indirectly, are, in all material respects, the holders of the voting power of the surviving entity (or entities with the
authority or voting power to elect the members of the board of directors (or their equivalent if other than a corporation) of such
entity or entities) after such reorganization, recapitalization or reclassification, or (iii) pursuant to a migratory merger effected
solely for the purpose of changing the jurisdiction of incorporation of the Company or any of its Subsidiaries.
(t) “Change
of Control Redemption Premium” means 125%.
(u) “Closing
Bid Price” and “Closing Sale Price” means, for any security as of any date, the last closing bid price and
last closing trade price, respectively, for such security on the Principal Market, as reported by Bloomberg, or, if the Principal Market
begins to operate on an extended hours basis and does not designate the closing bid price or the closing trade price (as the case may
be) then the last bid price or last trade price, respectively, of such security prior to 4:00:00 p.m., New York time, as reported by
Bloomberg, or, if the Principal Market is not the principal securities exchange or trading market for such security, the last closing
bid price or last trade price, respectively, of such security on the principal securities exchange or trading market where such security
is listed or traded as reported by Bloomberg, or if the foregoing do not apply, the last closing bid price or last trade price, respectively,
of such security in the over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg, or, if no
closing bid price or last trade price, respectively, is reported for such security by Bloomberg, the average of the bid prices, or the
ask prices, respectively, of any market makers for such security as reported in The Pink Open Market (or a similar organization or agency
succeeding to its functions of reporting prices). If the Closing Bid Price or the Closing Sale Price cannot be calculated for a security
on a particular date on any of the foregoing bases, the Closing Bid Price or the Closing Sale Price (as the case may be) of such security
on such date shall be the fair market value as mutually determined by the Company and the Holder. If the Company and the Holder are unable
to agree upon the fair market value of such security, then such dispute shall be resolved in accordance with the procedures in Section 25.
All such determinations shall be appropriately adjusted for any share splits, share dividends, share combinations, recapitalizations
or other similar transactions during such period.
(v) “Closing
Date” shall have the meaning set forth in the Securities Purchase Agreement, which date is the date the Company initially issued
Notes pursuant to the terms of the Securities Purchase Agreement.
(w) “Conversion
Floor Price Condition” means that the relevant Alternate Conversion Price, Amortization Conversion Price or Interest Conversion
Price is being determined based on clause (x) of such definition.
(x) “Convertible
Securities” means any shares or other security (other than Options) that is at any time and under any circumstances, directly
or indirectly, convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any Ordinary
Shares.
(y) “Current
Subsidiary” means any Person in which the Company on the Subscription Date, directly or indirectly, (i) owns any of the
outstanding share capital or holds any equity or similar interest of such Person or (ii) controls or operates all or any part of
the business, operations or administration of such Person, and all of the foregoing, collectively, “Current Subsidiaries”.
(z) “Eligible
Market” means The New York Stock Exchange, the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Select Market, the
Nasdaq Global Market or the Principal Market.
(aa) “Eligible
Marketable Securities” as of any date means marketable securities which would be reflected on a consolidated balance sheet
of the Company and its Subsidiaries prepared as of such date in accordance with GAAP, and which are permitted under the Company’s
investment policies as in effect on the Issuance Date or approved thereafter by the Company’s Board of Directors.
(bb) “Equity
Conditions” means, with respect to an given date of determination: (i) on each day during the period beginning fifteen
(15) calendar days prior to such applicable date of determination and ending on and including such applicable date of determination either
(x) one or more Registration Statements filed pursuant to the Registration Rights Agreement shall be effective and the prospectus
contained therein shall be available on such applicable date of determination (with, for the avoidance of doubt, any Ordinary Shares
previously sold pursuant to such prospectus deemed unavailable) for the resale of all Ordinary Shares to be issued in connection with
the event requiring this determination (or issuable upon conversion of the Conversion Amount being redeemed, as applicable, in the event
requiring this determination at the Alternate Conversion Price then in effect (without regard to any limitations on conversion set forth
herein)) (each, a “Required Minimum Securities Amount”), in each case, in accordance with the terms of the Registration
Rights Agreement and there shall not have been during such period any Grace Periods (as defined in the Registration Rights Agreement)
or (y) all Registrable Securities shall be eligible for sale pursuant to Rule 144 (as defined in the Securities Purchase Agreement)
without the need for registration under any applicable federal or state securities laws (in each case, disregarding any limitation on
conversion of the Notes, other issuance of securities with respect to the Notes and exercise of the Warrants) and no Current Public Information
Failure (as defined in the Registration Rights Agreement) exists or is continuing; (ii) on each day during the period beginning
fifteen (15) calendar days prior to the applicable date of determination and ending on and including the applicable date of determination
(the “Equity Conditions Measuring Period”), the Ordinary Shares (including all Registrable Securities) is listed or
designated for quotation (as applicable) on an Eligible Market and shall not have been suspended from trading on an Eligible Market (other
than suspensions of not more than two (2) days and occurring prior to the applicable date of determination due to business announcements
by the Company) nor shall delisting or suspension by an Eligible Market have been threatened (with a reasonable prospect of delisting
occurring after giving effect to all applicable notice, appeal, compliance and hearing periods) or reasonably likely to occur or pending
as evidenced by (A) a writing by such Eligible Market or (B) the Company falling below the minimum listing maintenance requirements
of the Eligible Market on which the Ordinary Shares is then listed or designated for quotation (as applicable); (iii) during the
Equity Conditions Measuring Period, the Company shall have delivered all Ordinary Shares issuable upon conversion of this Note on a timely
basis as set forth in Section 3 hereof and all other shares of share capital required to be delivered by the Company on a timely
basis as set forth in the other Transaction Documents; (iv) any Ordinary Shares to be issued in connection with the event requiring
determination (or issuable upon conversion of the Conversion Amount being redeemed in the event requiring this determination) may be
issued in full without violating Section 3(d) hereof; (v) any Ordinary Shares to be issued in connection with the event
requiring determination (or issuable upon conversion of the Conversion Amount being redeemed in the event requiring this determination
(without regards to any limitations on conversion set forth herein)) may be issued in full without violating the rules or regulations
of the Eligible Market on which the Ordinary Shares is then listed or designated for quotation (as applicable); (vi) on each day
during the Equity Conditions Measuring Period, no public announcement of a pending, proposed or intended Fundamental Transaction shall
have occurred which has not been abandoned, terminated or consummated; (vii) the Company shall have no knowledge of any fact that
would reasonably be expected to cause (1) any Registration Statement required to be filed pursuant to the Registration Rights Agreement
to not be effective or the prospectus contained therein to not be available for the resale of the applicable Required Minimum Securities
Amount of Registrable Securities in accordance with the terms of the Registration Rights Agreement or (2) any Registrable Securities
to not be eligible for sale pursuant to Rule 144 without the need for registration under any applicable federal or state securities
laws (in each case, disregarding any limitation on conversion of the Notes, other issuance of securities with respect to the Notes and
exercise of the Warrants) and no Current Public Information Failure exists or is continuing; (viii) the Holder shall not be in (and
no other holder of Notes shall be in) possession of any material, non-public information provided to any of them by the Company, any
of its Subsidiaries or any of their respective affiliates, employees, officers, representatives, agents or the like; (ix) on each
day during the Equity Conditions Measuring Period, the Company otherwise shall have been in compliance with each, and shall not have
breached any representation or warranty in any material respect (other than representations or warranties subject to material adverse
effect or materiality, which may not be breached in any respect) or any covenant or other term or condition of any Transaction Document,
including, without limitation, the Company shall not have failed to timely make any payment pursuant to any Transaction Document; (x) there
shall not have occurred any Volume Failure or Price Failure as of such applicable date of determination; (xi) on the applicable
date of determination (A) no Authorized Share Failure shall exist or be continuing and the applicable Required Minimum Securities
Amount of Ordinary Shares are available under the certificate of incorporation of the Company and reserved by the Company to be issued
pursuant to the Notes and (B) all Ordinary Shares to be issued in connection with the event requiring this determination (or issuable
upon conversion of the Conversion Amount being redeemed in the event requiring this determination (without regards to any limitations
on conversion set forth herein)) may be issued in full without resulting in an Authorized Share Failure; (xii) on each day during
the Equity Conditions Measuring Period, there shall not have occurred and there shall not exist an Event of Default or an event that
with the passage of time or giving of notice would constitute an Event of Default; (xiii) no bone fide dispute shall exist, by and
between any of holder of Notes or Warrants, the Company, the Principal Market (or such applicable Eligible Market in which the Ordinary
Shares of the Company is then principally trading) and/or FINRA with respect to any term or provision of any Note or any other Transaction
Document (xiv) the Ordinary Shares issuable pursuant the event requiring the satisfaction of the Equity Conditions are duly authorized
and listed and eligible for trading without restriction on an Eligible Market and (xv) solely with respect to an Amortization Conversion,
the Amortization Conversion Amount is less than 15% of the aggregate dollar trading volume (as reported on Bloomberg) of the Ordinary
Shares on the Principal Market over the fifteen (15) consecutive Trading Day period immediately prior to each of the applicable Amortization
Notice Date and the applicable Amortization Date.
(cc) “Equity
Conditions Failure” means that on any day during the period commencing fifteen (15) Trading Days prior to the applicable date
of determination, the Equity Conditions have not been satisfied (or waived in writing by the Holder).
(dd) “Event
Market Price” means, with respect to any Share Combination Event Date, the quotient determined by dividing (x) the sum
of the VWAP of the Ordinary Shares for each of the five (5) Trading Days with the lowest VWAP of the Ordinary Shares during the
fifteen (15) consecutive Trading Day period ending and including the Trading Day immediately preceding the sixteenth (16th) Trading Day
after such Share Combination Event Date, divided by (y) five (5).
(ee) “Excluded
Securities” means (i) Ordinary Shares or standard options to purchase Ordinary Shares issued to directors, officers or
employees of the Company for services rendered to the Company in their capacity as such pursuant to an Approved Share Plan (as defined
above) or such agreement with such directors, officers or employees of the Company existing as of the date of this Agreement, provided
that (A) all such issuances (taking into account the Ordinary Shares issuable upon exercise of such options) after the Subscription
Date pursuant to this clause (i) do not, in the aggregate, exceed more than 5% of the Ordinary Shares issued and outstanding immediately
prior to the Subscription Date and (B) the exercise price of any such options is not lowered, none of such options are amended to
increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed
in any manner that adversely affects any of the Buyers; (ii) Ordinary Shares issued upon the conversion or exercise of Convertible
Securities or Options (other than standard options to purchase Ordinary Shares issued pursuant to an Approved Share Plan or such agreements
with such directors, officers or employees of the Company existing as of the date of this Agreement that are covered by clause (i) above)
issued prior to the Subscription Date, provided that the conversion price of any such Convertible Securities (other than standard options
to purchase Ordinary Shares issued pursuant to an Approved Share Plan or such agreements with such directors, officers or employees of
the Company existing as of the date of this Agreement that are covered by clause (i) above) is not lowered, none of such Convertible
Securities or Options (other than standard options to purchase Ordinary Shares issued pursuant to an Approved Share Plan or such agreements
with such directors, officers or employees of the Company existing as of the date of this Agreement that are covered by clause (i) above)
are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities
or Options (other than standard options to purchase Ordinary Shares issued pursuant to an Approved Share Plan or such agreements with
such directors, officers or employees of the Company existing as of the date of this Agreement that are covered by clause (i) above)
are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Ordinary Shares issuable upon
conversion of the Notes or otherwise pursuant to the terms of the Notes; provided, that the terms of the Notes are not amended, modified
or changed on or after the Subscription Date (other than antidilution adjustments pursuant to the terms thereof in effect as of the Subscription
Date), (iv) the Ordinary Shares issuable upon exercise of the Warrants; provided, that the terms of the Warrants are not amended,
modified or changed on or after the Subscription Date (other than antidilution adjustments pursuant to the terms thereof in effect as
of the Subscription Date), and (v) securities issued in connection with any bona fide strategic or commercial alliances, acquisitions,
mergers, licensing arrangements, strategic transactions and strategic partnerships (including, without limitation, joint ventures, marketing
or distribution arrangements, collaboration agreements or intellectual property license agreements) approved by a majority of the disinterested
directors of the Company, provided that such securities are issued as “restricted securities” (as defined in Rule 144)
and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the Restricted
Period (as defined in the Securities Purchase Agreement), provided, further, that (w) the primary purpose of such issuance is not
to raise capital as reasonably determined by a majority of the disinterested directors of the Company, and (x) the purchaser or
acquirer or recipient of the securities in such issuance solely consists of either (I) the actual participants in such strategic
or commercial alliance, strategic or commercial licensing arrangement or strategic or commercial partnership, (II) the actual owners
of such assets or securities acquired in such acquisition or merger or (III) the stockholders, partners, employees, consultants,
officers, directors or members of the foregoing Persons, in each case, which is, itself or through its subsidiaries, an operating company
or an owner of an asset, in a business synergistic with the business of the Company and shall provide to the Company additional benefits
in addition to the investment of funds, (y) the number or amount of securities issued to such Persons by the Company shall not be
disproportionate to each such Person’s actual participation in (or fair market value of the contribution to) such strategic or
commercial alliance or strategic or commercial partnership or ownership of such assets or securities to be acquired by the Company, as
applicable and (z) the aggregate number of Ordinary Shares issued (or issuable upon conversion or exercise of Convertible Securities
or Options, as applicable) pursuant to this clause (v), in the aggregate, shall not exceed thirty percent (30%) of the total number of
outstanding Ordinary Shares immediately following the issuance and sale of the Securities pursuant hereto.
(ff) “Fiscal
Quarter” means each of the fiscal quarters adopted by the Company for financial reporting purposes that correspond to the Company’s
fiscal year as of the date hereof that ends on June 30.
(gg) “Floor
Price” means $[ ]4 (or such lower amount as permitted,
from time to time, by the Principal Market), subject to adjustment for share splits, share dividends, share combinations, recapitalizations
or other similar events.
4
Insert 20% of the Nasdaq “Minimum Price”
(hh) “Fundamental
Transaction” means (A) that the Company shall, directly or indirectly, including through subsidiaries, Affiliates or otherwise,
in one or more related transactions, (i) consolidate or merge with or into (whether or not the Company is the surviving corporation)
another Subject Entity, or (ii) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties
or assets of the Company or any of its “significant subsidiaries” (as defined in Rule 1-02 of Regulation S-X) to one
or more Subject Entities, or (iii) make, or allow one or more Subject Entities to make, or allow the Company to be subject to or
have its Ordinary Shares be subject to or party to one or more Subject Entities making, a purchase, tender or exchange offer that is
accepted by the holders of at least either (x) 50% of the outstanding Ordinary Shares, (y) 50% of the outstanding Ordinary
Shares calculated as if any Ordinary Shares held by all Subject Entities making or party to, or Affiliated with any Subject Entities
making or party to, such purchase, tender or exchange offer were not outstanding; or (z) such number of Ordinary Shares such that
all Subject Entities making or party to, or Affiliated with any Subject Entity making or party to, such purchase, tender or exchange
offer, become collectively the beneficial owners (as defined in Rule 13d-3 under the 1934 Act) of at least 50% of the outstanding
Ordinary Shares, or (iv) consummate a stock or share purchase agreement or other business combination (including, without limitation,
a reorganization, recapitalization, spin-off or scheme of arrangement) with one or more Subject Entities whereby all such Subject Entities,
individually or in the aggregate, acquire, either (x) at least 50% of the outstanding Ordinary Shares, (y) at least 50% of
the outstanding Ordinary Shares calculated as if any Ordinary Shares held by all the Subject Entities making or party to, or Affiliated
with any Subject Entity making or party to, such stock or share purchase agreement or other business combination were not outstanding;
or (z) such number of Ordinary Shares such that the Subject Entities become collectively the beneficial owners (as defined in Rule 13d-3
under the 1934 Act) of at least 50% of the outstanding Ordinary Shares, or (v) reorganize, recapitalize or reclassify its Ordinary
Shares, (B) that the Company shall, directly or indirectly, including through subsidiaries, Affiliates or otherwise, in one or more
related transactions, allow any Subject Entity individually or the Subject Entities in the aggregate to be or become the “beneficial
owner” (as defined in Rule 13d-3 under the 1934 Act), directly or indirectly, whether through acquisition, purchase, assignment,
conveyance, tender, tender offer, exchange, reduction in outstanding Ordinary Shares, merger, consolidation, business combination, reorganization,
recapitalization, spin-off, scheme of arrangement, reorganization, recapitalization or reclassification or otherwise in any manner whatsoever,
of either (x) at least 50% of the aggregate ordinary voting power represented by issued and outstanding Ordinary Shares, (y) at
least 50% of the aggregate ordinary voting power represented by issued and outstanding Ordinary Shares not held by all such Subject Entities
as of the date of this Note calculated as if any Ordinary Shares held by all such Subject Entities were not outstanding, or (z) a
percentage of the aggregate ordinary voting power represented by issued and outstanding Ordinary Shares or other equity securities of
the Company sufficient to allow such Subject Entities to effect a statutory short form merger or other transaction requiring other shareholders
of the Company to surrender their Ordinary Shares without approval of the shareholders of the Company or (C) directly or indirectly,
including through subsidiaries, Affiliates or otherwise, in one or more related transactions, the issuance of or the entering into any
other instrument or transaction structured in a manner to circumvent, or that circumvents, the intent of this definition in which case
this definition shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this definition
to the extent necessary to correct this definition or any portion of this definition which may be defective or inconsistent with the
intended treatment of such instrument or transaction.
(ii) “GAAP”
means United States generally accepted accounting principles, consistently applied.
(jj) “Group”
means a “group” as that term is used in Section 13(d) of the 1934 Act and as defined in Rule 13d-5 thereunder.
(kk) “Holder
Pro Rata Amount” means a fraction (i) the numerator of which is the original Principal amount of this Note on the Closing
Date and (ii) the denominator of which is the aggregate original principal amount of all Notes issued to the initial purchasers
pursuant to the Securities Purchase Agreement on the Closing Date.
(ll) “Indebtedness”
shall have the meaning ascribed to such term in the Securities Purchase Agreement.
(mm) “Interest
Conversion Price” means, with respect to a particular date of determination, the lower of (i) the Conversion Price then
in effect, and (ii) the greater of (x) the Floor Price and (y) 88% of the quotient of (A) the sum of the VWAP of
the Ordinary Shares for each of the five (5) Trading Days immediately prior to the applicable Interest Date, divided by (B) five
(5). All such determinations to be appropriately adjusted for any share split, share dividend, share combination or other similar transaction
during any such measuring period.
(nn) “Interest
Floor Amount” means an amount in cash, to be delivered by wire transfer of immediately available funds pursuant to wire instructions
delivered to the Company by the Holder in writing, equal to the product obtained by multiplying (A) the higher of (I) the highest
price that the Ordinary Shares trade at on the Trading Day immediately preceding the relevant Interest Date and (II) the applicable
Interest Conversion Price and (B) the difference obtained by subtracting (I) the number of Ordinary Shares delivered (or to
be delivered) to the Holder on the applicable Share Delivery Deadline with respect to such Interest Date from (II) the quotient
obtained by dividing (x) the applicable Conversion Amount that the Holder has elected to be the subject of the applicable Interest
Date, by (y) the applicable Interest Conversion Price without giving effect to clause (x) of such definition.
(oo) “Interest
Date” means __, 2024 and each Fiscal Quarter thereafter.
(pp) “Interest
Rate” means, as of any date of determination, the greater of (i) thirteen and a half percent (13.5% per annum) and (ii) the
sum of (A) the Prime Rate in effect as of such date of determination and (B) five (5%) per annum; provided, that if such Interest
is being paid in Ordinary Shares hereunder, such Interest shall recalculated in connection with such issuance of Ordinary Shares at a
deemed rate of the greater of (i) sixteen percent (16% per annum) and (ii) the sum of (A) the Prime Rate in effect as
of such date of determination and (B) seven and a half (7.5%) per annum; provided, further, that each of the forgoing rates shall
be subject to adjustment from time to time in accordance with Section 2.
(qq) “Investment”
means any beneficial ownership (including shares, stock, partnership or limited liability company interests) of or in any Person, or
any loan, advance or capital contribution to any Person or the acquisition of all, or substantially all, of the assets of another Person
or the purchase of any assets of another Person for greater than the fair market value of such assets.
(rr) “Maturity
Date” shall mean [ ]5; provided, however, the
Maturity Date may be extended at the option of the Holder (i) in the event that, and for so long as, an Event of Default shall have
occurred and be continuing or any event shall have occurred and be continuing that with the passage of time and the failure to cure would
result in an Event of Default or (ii) through the date that is twenty (20) Business Days after the consummation of a Fundamental
Transaction in the event that a Fundamental Transaction is publicly announced or a Change of Control Notice is delivered prior to the
Maturity Date, provided further that if a Holder elects to convert some or all of this Note pursuant to Section 3 hereof, and the
Conversion Amount would be limited pursuant to Section 3(d) hereunder, the Maturity Date shall automatically be extended until
such time as such provision shall not limit the conversion of this Note.
(ss) “New
Subsidiary” means, as of any date of determination, any Person in which the Company after the Subscription Date, directly or
indirectly, (i) owns or acquires more than 50% of the of the outstanding share capital or holds more than 50% of the equity or similar
interest of such Person or (ii) controls or operates all or any part of the business, operations or administration of such Person,
and all of the foregoing, collectively, “New Subsidiaries”.
(tt) “Options”
means any rights, warrants or options to subscribe for or purchase Ordinary Shares or Convertible Securities.
(uu) “Ordinary
Shares” means (i) the Company’s ordinary shares, $0.30 par value per share, and (ii) any share capital into
which such ordinary shares shall have been changed or any share capital resulting from a reclassification of such ordinary shares.
(vv) “Parent
Entity” of a Person means an entity that, directly or indirectly, controls the applicable Person and whose common stock or
equivalent equity security is quoted or listed on an Eligible Market, or, if there is more than one such Person or Parent Entity, the
Person or Parent Entity with the largest public market capitalization as of the date of consummation of the Fundamental Transaction.
(ww) “Permitted
Equipment Indebtedness” means Indebtedness secured by Permitted Liens or unsecured but, in each case, as described in clauses
(iv) and (v) of the definition of Permitted Liens.
5
Insert thirty-six month anniversary of the applicable
Issuance Date
(xx) “Permitted
Indebtedness” means (i) Indebtedness evidenced by this Note and the Other Notes, (ii) Indebtedness set forth on Schedule
3(s) to the Securities Purchase Agreement, as in effect as of the Subscription Date, (iii) Permitted Equipment Indebtedness
in an aggregate amount not to exceed $3 million, (iv) Permitted Subordinated Indebtedness in an aggregate amount not to exceed $10
million and (v) Indebtedness in an aggregate amount not to exceed the product of the Bitcoin Price as of such date of determination
(such aggregate amount of Bitcoin, the “Pledged Bitcoin Amount”).
(yy) “Permitted
Liens” means (i) any Lien for taxes not yet due or delinquent or being contested in good faith by appropriate proceedings
for which adequate reserves have been established in accordance with GAAP, (ii) any statutory Lien arising in the ordinary course
of business by operation of law with respect to a liability that is not yet due or delinquent, (iii) any Lien created by operation
of law, such as materialmen’s liens, mechanics’ liens and other similar liens, arising in the ordinary course of business
with respect to a liability that is not yet due or delinquent or that are being contested in good faith by appropriate proceedings, (iv) Liens
(A) upon or in any equipment acquired or held by the Company or any of its Subsidiaries to secure the purchase price of such equipment
or Indebtedness incurred solely for the purpose of financing the acquisition or lease of such equipment, or (B) in connection with
the acquisition or refinancing of such equipment, provided that the Lien is confined solely to the property so acquired and improvements
thereon, and the proceeds of such equipment, in either case, with respect to Indebtedness in an aggregate amount not to exceed $3,000,000,
(v) Liens incurred in connection with the extension, renewal or refinancing of the Indebtedness secured by Liens of the type described
in clause (iv) above, provided that any extension, renewal or replacement Lien shall be limited to the property encumbered by the
existing Lien and the principal amount of the Indebtedness being extended, renewed or refinanced does not increase, (vi) Liens in
favor of customs and revenue authorities arising as a matter of law to secure payments of custom duties in connection with the importation
of goods, (vii) Liens arising from judgments, decrees or attachments in circumstances not constituting an Event of Default under
Section 4(a)(xii) and (viii) Liens with respect to such aggregate amount of the Company’s Bitcoin not in excess
of the Pledged Bitcoin Amount as of any given time of determination.
(zz) “Permitted
Subordinated Indebtedness” means Indebtedness incurred by the Company that is made expressly subordinate in right of payment
to the Indebtedness evidenced by this Note, as reflected in a written agreement reasonably acceptable to the Holder, and which Indebtedness
does not provide at any time for (1) the payment, prepayment, repayment, repurchase or defeasance, directly or indirectly, of any
principal or premium, if any, thereon until at least ninety-one (91) days after the Maturity Date and (2) total interest and fees
at a rate in excess of 12% per annum.
(aaa) “Person”
means an individual, a limited liability company, a partnership, a joint venture, a company, a corporation, a trust, an unincorporated
organization, any other entity or a government or any department or agency thereof.
(bbb) “Price
Failure” means $0.20 (as adjusted for any share splits, share dividends, share combinations, recapitalizations or other similar
transactions occurring after the Subscription Date).
(ccc) “Prime
Rate” means the “prime rate” which from time to time published in the “Money Rates” column of The Wall
Street Journal (Eastern Edition, New York Metro); provided, however, if the Money Rates column of The Wall Street Journal (Eastern Edition,
New York Metro) ceases to be published or otherwise does not designate a “prime rate” as of a Business Day, the Holder has
the right to obtain such information from a similar business publication of its selection.
(ddd) “Principal
Market” means the Nasdaq Capital Market.
(eee) “Redemption
Notices” means, collectively, the Event of Default Redemption Notices, the Company Optional Redemption Notices, the Subsequent
Placement Optional Redemption Notices and the Change of Control Redemption Notices, and each of the foregoing, individually, a “Redemption
Notice.”
(fff) “Redemption
Premium” means 125%.
(ggg) “Redemption
Prices” means, collectively, Event of Default Redemption Prices, the Change of Control Redemption Prices, the Amortization
Redemption Prices, the Company Optional Redemption Prices and the Subsequent Placement Optional Redemption Prices, and each of the foregoing,
individually, a “Redemption Price.”
(hhh) “Registration
Rights Agreement” means that certain registration rights agreement, dated as of the Closing Date, by and among the Company
and the initial holders of the Notes relating to, among other things, the registration of the resale of the Ordinary Shares issuable
upon conversion of the Notes or otherwise pursuant to the terms of the Notes and exercise of the Warrants, as may be amended from time
to time.
(iii) “Revenue”
means, with respect to any given cash flow, receivable or other general intangible, the revenue directly attributable thereto of the
Company or any of its Subsidiaries, as determined in accordance with GAAP.
(jjj) “SEC”
means the United States Securities and Exchange Commission or the successor thereto.
(kkk) “Securities
Purchase Agreement” means that certain securities purchase agreement, dated as of the Subscription Date, by and among the Company
and the initial holders of the Notes pursuant to which the Company issued the Notes, as may be amended from time to time.
(lll) “Security
Agreement” shall have the meaning as set forth in the Securities Purchase Agreement.
(mmm) “Subscription
Date” means __, 2023.
(nnn) “Subsidiaries”
means, as of any date of determination, collectively, all Current Subsidiaries and all New Subsidiaries, and each of the foregoing, individually,
a “Subsidiary.”
(ooo) “Subject
Entity” means any Person, Persons or Group or any Affiliate or associate of any such Person, Persons or Group.
(ppp) “Successor
Entity” means the Person (or, if so elected by the Holder, the Parent Entity) formed by, resulting from or surviving any Fundamental
Transaction or the Person (or, if so elected by the Holder, the Parent Entity) with which such Fundamental Transaction shall have been
entered into.
(qqq) “Trading
Day” means, as applicable, (x) with respect to all price or trading volume determinations relating to the Ordinary Shares,
any day on which the Ordinary Shares are traded on the Principal Market, or, if the Principal Market is not the principal trading market
for the Ordinary Shares, then on the principal securities exchange or securities market on which the Ordinary Shares is then traded,
provided that “Trading Day” shall not include any day on which the Ordinary Shares is scheduled to trade on such exchange
or market for less than 4.5 hours or any day that the Ordinary Shares is suspended from trading during the final hour of trading on such
exchange or market (or if such exchange or market does not designate in advance the closing time of trading on such exchange or market,
then during the hour ending at 4:00:00 p.m., New York time) unless such day is otherwise designated as a Trading Day in writing by the
Holder or (y) with respect to all determinations other than price determinations relating to the Ordinary Shares, any day on which
The New York Stock Exchange (or any successor thereto) is open for trading of securities.
(rrr) “Volume
Failure” means, with respect to a particular date of determination, the aggregate daily dollar trading volume (as reported
on Bloomberg) of the Ordinary Shares on the Principal Market on any Trading Day during the fifteen (15) Trading Day period ending on
the Trading Day immediately preceding such date of determination (such period, the “Volume Failure Measuring Period”),
is less than $36,000 (as adjusted for any share splits, share dividends, share combinations, recapitalizations or other similar transactions
occurring after the Subscription Date).
(sss) “VWAP”
means, for any security as of any date, the dollar volume-weighted average price for such security on the Principal Market (or, if the
Principal Market is not the principal trading market for such security, then on the principal securities exchange or securities market
on which such security is then traded), during the period beginning at 9:30 a.m., New York time, and ending at 4:00 p.m., New York time,
as reported by Bloomberg through its “VAP” function (set to 09:30 start time and 16:00 end time) or, if the foregoing does
not apply, the dollar volume-weighted average price of such security in the over-the-counter market on the electronic bulletin board
for such security during the period beginning at 9:30 a.m., New York time, and ending at 4:00 p.m., New York time, as reported by Bloomberg,
or, if no dollar volume-weighted average price is reported for such security by Bloomberg for such hours, the average of the highest
closing bid price and the lowest closing ask price of any of the market makers for such security as reported in The Pink Open Market
(or a similar organization or agency succeeding to its functions of reporting prices). If the VWAP cannot be calculated for such security
on such date on any of the foregoing bases, the VWAP of such security on such date shall be the fair market value as mutually determined
by the Company and the Holder. If the Company and the Holder are unable to agree upon the fair market value of such security, then such
dispute shall be resolved in accordance with the procedures in Section 25. All such determinations shall be appropriately adjusted
for any share dividend, share split, share combination, recapitalization or other similar transaction during such period.
(ttt) “Warrants”
has the meaning ascribed to such term in the Securities Purchase Agreement, and shall include all warrants issued in exchange therefor
or replacement thereof.
34. DISCLOSURE.
Upon delivery by the Company to the Holder (or receipt by the Company from the Holder) of any notice in accordance with the terms of
this Note, unless the Company has in good faith determined that the matters relating to such notice do not constitute material, non-public
information relating to the Company or any of its Subsidiaries, the Company shall on or prior to 9:00 am, New York city time on the Business
Day immediately following such notice delivery date, publicly disclose such material, non-public information on a Report of Foreign Private
Issuer on Form 6-K or otherwise. In the event that the Company believes that a notice contains material, non-public information
relating to the Company or any of its Subsidiaries, the Company so shall indicate to the Holder explicitly in writing in such notice
(or immediately upon receipt of notice from the Holder, as applicable), and in the absence of any such written indication in such notice
(or notification from the Company immediately upon receipt of notice from the Holder), the Holder shall be entitled to presume that information
contained in the notice does not constitute material, non-public information relating to the Company or any of its Subsidiaries. Nothing
contained in this Section 34 shall limit any obligations of the Company, or any rights of the Holder, under Section 4(i) of
the Securities Purchase Agreement.
35. ABSENCE
OF TRADING AND DISCLOSURE RESTRICTIONS. The Company acknowledges and agrees that the Holder is not a fiduciary or agent of the Company
and that the Holder shall have no obligation to (a) maintain the confidentiality of any information provided by the Company or (b) refrain
from trading any securities while in possession of such information in the absence of a written non-disclosure agreement signed by an
officer of the Holder that explicitly provides for such confidentiality and trading restrictions. In the absence of such an executed,
written non-disclosure agreement, the Company acknowledges that the Holder may freely trade in any securities issued by the Company,
may possess and use any information provided by the Company in connection with such trading activity, and may disclose any such information
to any third party.
[signature page follows]
IN
WITNESS WHEREOF, the Company has caused this Note to be duly executed as of the Issuance Date set out above.
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BIT ORIGIN LTD |
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By: |
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Name: |
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Title: |
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Senior
Convertible Note - Signature Page
EXHIBIT I
BIT ORIGIN LTD
CONVERSION NOTICE
Reference
is made to the Senior Secured Convertible Note (the “Note”) issued to the undersigned by Bit Origin Ltd, an exempted
company incorporated under the laws of the Cayman Islands (the “Company”). In accordance with and pursuant to the
Note, the undersigned hereby elects to convert the Conversion Amount (as defined in the Note) of the Note indicated below into Ordinary
Shares, $0.30 par value per share (the “Ordinary Shares”), of the Company, as of the date specified below. Capitalized
terms not defined herein shall have the meaning as set forth in the Note.
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Aggregate Principal to be converted: |
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Aggregate accrued and unpaid Interest and accrued and unpaid
Late Charges with respect to such portion of the Aggregate Principal and such Aggregate Interest to be converted: |
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AGGREGATE CONVERSION AMOUNT
TO BE CONVERTED: |
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Please confirm the following information:
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Conversion Price: |
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Number of Ordinary Shares to be issued: |
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Amortization Amount(s) to be reduced (and corresponding
Amortization Date(s)) and amount of reduction: |
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If this Conversion Notice is being delivered with respect to an Alternate Conversion, check here if Holder is electing to use the following Alternate Conversion Price:____________
Please issue the Ordinary Shares into which the Note is being converted to Holder, or for its benefit, as follows:
Check here if requesting delivery as a certificate to the following name and to the following address:
Check
here if requesting delivery by Deposit/Withdrawal at Custodian as follows:
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DTC Participant: |
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DTC Number: |
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Account Number: |
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| Name of Registered Holder |
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E-mail Address:
Exhibit II
ACKNOWLEDGMENT
The
Company hereby (a) acknowledges this Conversion Notice, (b) certifies that the above indicated number of Ordinary Shares [are][are
not] eligible to be resold by the Holder either (i) pursuant to Rule 144 (subject to the Holder’s execution and delivery
to the Company of a customary 144 representation letter) or (ii) an effective and available registration statement and (c) hereby
directs _________________ to issue the above indicated number of Ordinary Shares in accordance with the Transfer Agent Instructions dated
_____________, 20__ from the Company and acknowledged and agreed to by ________________________.
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BIT ORIGIN LTD |
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By: |
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Name: |
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Title: |
Exhibit 4.2
Final Form
[FORM OF WARRANT]
NEITHER
THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE
HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE
OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL TO THE HOLDER (IF REQUESTED BY THE COMPANY), IN A
FORM REASONABLY ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD OR ELIGIBLE
TO BE SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION
WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES. THE NUMBER OF ORDINARY SHARES ISSUABLE
UPON EXERCISE OF THIS WARRANT MAY BE LESS THAN THE AMOUNTS SET FORTH ON THE FACE HEREOF PURSUANT TO SECTION 1(a) OF
THIS WARRANT.
Bit Origin
Ltd
Warrant
To Purchase Ordinary Shares
Warrant No.:
Date of Issuance: [ ], 20__ (“Issuance
Date”)
Bit Origin Ltd, an exempted
company incorporated under the laws of the Cayman Islands(the “Company”), hereby certifies that, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, [BUYER], the
registered holder hereof or its permitted assigns (the “Holder”), is entitled, subject to the terms set forth below,
to purchase from the Company, at the Exercise Price (as defined below) then in effect, upon exercise of this Warrant to Purchase Ordinary
Shares (including any Warrants to Purchase Ordinary Shares issued in exchange, transfer or replacement hereof, the “Warrant”),
at any time or times on or after the six month anniversary of the Issuance Date (or such earlier date as the Company shall permit with
respect to all holders of SPA Warrants (as defined below) then outstanding, as evidenced by a written notice to all holders of SPA Warrants,
which may be an e-mail, the “Initial Exercisability Date”), but not after 11:59 p.m., New York time, on the Expiration
Date (as defined below), _________________1 (subject to adjustment
as provided herein) fully paid and non-assessable Ordinary Shares (as defined below) (the “Warrant Shares”, and such
number of Warrant Shares, the “Warrant Number”). Except as otherwise defined herein, capitalized terms in this Warrant
shall have the meanings set forth in Section 19. This Warrant is one of the Warrants to Purchase Ordinary Shares (the “SPA
Warrants”) issued pursuant to Section 1 of that certain Securities Purchase Agreement, dated as of December __, 2023
(the “Subscription Date”), by and among the Company and the investors (the “Buyers”) referred to
therein, as amended from time to time (the “Securities Purchase Agreement”).
60% Warrant coverage
1. EXERCISE
OF WARRANT.
(a) Mechanics
of Exercise. Subject to the terms and conditions hereof (including, without limitation, the limitations set forth in Section 1(f)),
this Warrant may be exercised by the Holder on any day on or after the Initial Exercisability Date (an “Exercise Date”),
in whole or in part, by delivery (whether via facsimile or otherwise) of a written notice, in the form attached hereto as Exhibit A
(the “Exercise Notice”), of the Holder’s election to exercise this Warrant. Within one (1) Trading
Day following an exercise of this Warrant as aforesaid, the Holder shall deliver payment to the Company of an amount equal to the Exercise
Price in effect on the date of such exercise multiplied by the number of Warrant Shares as to which this Warrant was so exercised (the
“Aggregate Exercise Price”) in cash or via wire transfer of immediately available funds if the Holder did not notify
the Company in such Exercise Notice that such exercise was made pursuant to a Cashless Exercise (as defined in Section 1(d)). The
Holder shall not be required to deliver the original of this Warrant in order to effect an exercise hereunder. Execution and delivery
of an Exercise Notice with respect to less than all of the Warrant Shares shall have the same effect as cancellation of the original
of this Warrant and issuance of a new Warrant evidencing the right to purchase the remaining number of Warrant Shares. Execution and
delivery of an Exercise Notice for all of the then-remaining Warrant Shares shall have the same effect as cancellation of the original
of this Warrant after delivery of the Warrant Shares in accordance with the terms hereof. On or before the first (1st) Trading
Day following the date on which the Company has received an Exercise Notice, the Company shall transmit by facsimile or electronic mail
an acknowledgment of confirmation of receipt of such Exercise Notice, in the form attached hereto as Exhibit B, to
the Holder and the Company’s transfer agent (the “Transfer Agent”), which confirmation shall constitute an instruction
to the Transfer Agent to process such Exercise Notice in accordance with the terms herein. On or before the second (2nd) Trading Day
following the date on which the Company has received such Exercise Notice (or such earlier date as required pursuant to the 1934 Act
or other applicable law, rule or regulation for the settlement of a trade of such Warrant Shares initiated on the applicable Exercise
Date), the Company shall (X) provided that the Transfer Agent is participating in The Depository Trust Company (“DTC”)
Fast Automated Securities Transfer Program, upon the request of the Holder, credit such aggregate number of Ordinary Shares to which
the Holder is entitled pursuant to such exercise to the Holder’s or its designee’s balance account with DTC through its Deposit/Withdrawal
at Custodian system, or (Y) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program (“FAST”),
upon the request of the Holder, issue and deliver (via reputable overnight courier) to the address as specified in the Exercise Notice,
a certificate, registered in the name of the Holder or its designee, for the number of Ordinary Shares to which the Holder shall be entitled
pursuant to such exercise. Upon delivery of an Exercise Notice, the Holder shall be deemed for all corporate purposes to have become
the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date such Warrant
Shares are credited to the Holder’s DTC account or the date of delivery of the certificates evidencing such Warrant Shares (as
the case may be). If this Warrant is submitted in connection with any exercise pursuant to this Section 1(a) and the number
of Warrant Shares represented by this Warrant submitted for exercise is greater than the number of Warrant Shares being acquired upon
an exercise and upon surrender of this Warrant to the Company by the Holder, then, at the request of the Holder, the Company shall as
soon as practicable and in no event later than two (2) Business Days after any exercise and at its own expense, issue and deliver
to the Holder (or its designee) a new Warrant (in accordance with Section 7(d)) representing the right to purchase the number of
Warrant Shares purchasable immediately prior to such exercise under this Warrant, less the number of Warrant Shares with respect to which
this Warrant is exercised. No fractional Ordinary Shares are to be issued upon the exercise of this Warrant, but rather the number of
Ordinary Shares to be issued shall be rounded up to the nearest whole number. The Company shall pay any and all transfer, stamp, issuance
and similar taxes, costs and expenses (including, without limitation, fees and expenses of the Transfer Agent) that may be payable with
respect to the issuance and delivery of Warrant Shares upon exercise of this Warrant. Notwithstanding the foregoing, except in the case
where an exercise of this Warrant is validly made pursuant to a Cashless Exercise, the Company’s failure to deliver Warrant Shares
to the Holder on or prior to the later of (i) two (2) Trading Days after receipt of the applicable Exercise Notice (or such
earlier date as required pursuant to the 1934 Act or other applicable law, rule or regulation for the settlement of a trade of such
Warrant Shares initiated on the applicable Exercise Date) and (ii) one (1) Trading Day after the Company’s receipt of
the Aggregate Exercise Price (or valid notice of a Cashless Exercise) (such later date, the “Share Delivery Date”)
shall not be deemed to be a breach of this Warrant. Notwithstanding anything to the contrary contained in this Warrant or the Registration
Rights Agreement, after the effective date of the Registration Statement (as defined in the Registration Rights Agreement) and prior
to the Holder’s receipt of the notice of a Grace Period (as defined in the Registration Rights Agreement), the Company shall cause
the Transfer Agent to deliver unlegended Ordinary Shares to the Holder (or its designee) in connection with any sale of Registrable Securities
(as defined in the Registration Rights Agreement) with respect to which the Holder has entered into a contract for sale, and delivered
a copy of the prospectus included as part of the particular Registration Statement to the extent applicable, and for which the Holder
has not yet settled. From the Issuance Date through and including the Expiration Date, the Company shall maintain a transfer agent that
participates in FAST.
(b) Exercise
Price. For purposes of this Warrant, “Exercise Price” means $15.00, subject to adjustment as provided herein.
(c) Company’s
Failure to Timely Deliver Securities. If the Company shall fail, for any reason or for no reason, on or prior to the Share Delivery
Date, either (I) if the Transfer Agent is not participating in FAST, to issue and deliver to the Holder (or its designee) a certificate
for the number of Warrant Shares to which the Holder is entitled and register such Warrant Shares on the Company’s share register
or, if the Transfer Agent is participating in FAST, to credit the balance account of the Holder or the Holder’s designee with DTC
for such number of Warrant Shares to which the Holder is entitled upon the Holder’s exercise of this Warrant (as the case may be)
or (II) if a Registration Statement covering the resale of the Warrant Shares that are the subject of the Exercise Notice (the “Unavailable
Warrant Shares”) is not available for the resale of such Unavailable Warrant Shares and the Company fails to promptly, but
in no event later than as required pursuant to the Registration Rights Agreement (x) so notify the Holder and (y) deliver the
Warrant Shares electronically without any restrictive legend by crediting such aggregate number of Warrant Shares to which the Holder
is entitled pursuant to such exercise to the Holder’s or its designee’s balance account with DTC through its Deposit/Withdrawal
At Custodian system (the event described in the immediately foregoing clause (II) is hereinafter referred as a “Notice
Failure” and together with the event described in clause (I) above, a “Delivery Failure”), then, in
addition to all other remedies available to the Holder, (X) the Company shall pay in cash to the Holder on each day after the Share
Delivery Date and during such Delivery Failure an amount equal to 2% of the product of (A) the sum of the number of Ordinary Shares
not issued to the Holder on or prior to the Share Delivery Date and to which the Holder is entitled, multiplied by (B) any trading
price of the Ordinary Shares selected by the Holder in writing as in effect at any time during the period beginning on the applicable
Exercise Date and ending on the applicable Share Delivery Date, and (Y) the Holder, upon written notice to the Company, may void
its Exercise Notice with respect to, and retain or have returned, as the case may be, any portion of this Warrant that has not been exercised
pursuant to such Exercise Notice; provided that the voiding of an Exercise Notice shall not affect the Company’s obligations to
make any payments which have accrued prior to the date of such notice pursuant to this Section 1(c) or otherwise. In addition
to the foregoing, if on or prior to the Share Delivery Date either (I) the Transfer Agent is not participating in the DTC Fast Automated
Securities Transfer Program, the Company shall fail to issue and deliver to the Holder (or its designee) a certificate and register such
Ordinary Shares on the Company’s share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities
Transfer Program, the Transfer Agent shall fail to credit the balance account of the Holder or the Holder’s designee with DTC for
the number of Ordinary Shares to which the Holder is entitled upon the Holder’s exercise hereunder or pursuant to the Company’s
obligation pursuant to clause (ii) below or (II) a Notice Failure occurs, and if on or after such Share Delivery Date the Holder
acquires (in an open market transaction, stock loan or otherwise) Ordinary Shares corresponding to all or any portion of the number of
Ordinary Shares issuable upon such exercise that the Holder is entitled to receive from the Company and has not received from the Company
in connection with such Delivery Failure or Notice Failure, as applicable (a “Buy-In”), then, in addition to all other
remedies available to the Holder, the Company shall, within two (2) Business Days after the Holder’s request and in the Holder’s
discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage
commissions, stock loan costs and other out-of-pocket expenses, if any) for the Ordinary Shares so acquired (including, without limitation,
by any other Person in respect, or on behalf, of the Holder) (the “Buy-In Price”), at which point the Company’s
obligation to so issue and deliver such certificate (and to issue such Ordinary Shares) or credit the balance account of such Holder
or such Holder’s designee, as applicable, with DTC for the number of Warrant Shares to which the Holder is entitled upon the Holder’s
exercise hereunder (as the case may be) (and to issue such Warrant Shares) shall terminate, or (ii) promptly honor its obligation
to so issue and deliver to the Holder a certificate or certificates representing such Warrant Shares or credit the balance account of
such Holder or such Holder’s designee, as applicable, with DTC for the number of Warrant Shares to which the Holder is entitled
upon the Holder’s exercise hereunder (as the case may be) and pay cash to the Holder in an amount equal to the excess (if any)
of the Buy-In Price over the product of (A) such number of Warrant Shares multiplied by (B) the lowest Closing Sale Price of
the Ordinary Shares on any Trading Day during the period commencing on the date of the applicable Exercise Notice and ending on the date
of such issuance and payment under this clause (ii) (the “Buy-In Payment Amount”). Nothing shall limit the Holder’s
right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific
performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing Ordinary
Shares (or to electronically deliver such Ordinary Shares) upon the exercise of this Warrant as required pursuant to the terms hereof.
While this Warrant is outstanding, the Company shall cause its transfer agent to participate in FAST. In addition to the foregoing rights,
(i) if the Company fails to deliver the applicable number of Warrant Shares upon an exercise pursuant to Section 1 by the applicable
Share Delivery Date, then the Holder shall have the right to rescind such exercise in whole or in part and retain and/or have the Company
return, as the case may be, any portion of this Warrant that has not been exercised pursuant to such Exercise Notice; provided that the
rescission of an exercise shall not affect the Company’s obligation to make any payments that have accrued prior to the date of
such notice pursuant to this Section 1(c) or otherwise, and (ii) if a registration statement covering the issuance or
resale of the Warrant Shares that are subject to an Exercise Notice is not available for the issuance or resale, as applicable, of such
Warrant Shares and the Holder has submitted an Exercise Notice prior to receiving notice of the non-availability of such registration
statement and the Company has not already delivered the Warrant Shares underlying such Exercise Notice electronically without any restrictive
legend by crediting such aggregate number of Warrant Shares to which the Holder is entitled pursuant to such exercise to the Holder’s
or its designee’s balance account with DTC through its Deposit / Withdrawal At Custodian system, the Holder shall have the option,
by delivery of notice to the Company, to (x) rescind such Exercise Notice in whole or in part and retain or have returned, as the
case may be, any portion of this Warrant that has not been exercised pursuant to such Exercise Notice; provided that the rescission of
an Exercise Notice shall not affect the Company’s obligation to make any payments that have accrued prior to the date of such notice
pursuant to this Section 1(c) or otherwise, and/or (y) switch some or all of such Exercise Notice from a cash exercise
to a Cashless Exercise.
(d) Cashless
Exercise. Notwithstanding anything contained herein to the contrary (other than Section 1(f) below), if the Warrant Shares
are not registered within 12 months after the closing of the Offering, the resale by the Holder of all, or any part, of the Warrant Shares
issuable upon exercise of this Warrant are not registered and available to be issued to the Holder without legend or other restrictions
pursuant to an effective Registration Statement (as defined in the Registration Rights Agreement) (or the prospectus contained therein
is not available for use), then the Holder may, in its sole discretion, exercise this Warrant in whole or in part and, in lieu of making
the cash payment otherwise contemplated to be made to the Company upon such exercise in payment of the Aggregate Exercise Price, elect
instead to receive upon such exercise the higher of (i) 0.45 Ordinary Shares per Warrant Share in such exercise and (ii) “Net
Number” of Ordinary Shares determined according to the following formula (a “Cashless Exercise”):
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Net Number = (A x B) - (A x C) |
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B |
For purposes of the foregoing
formula:
A= the total number of shares with respect
to which this Warrant is then being exercised.
B = as elected by the Holder: (i) the
VWAP of the Ordinary Shares on the Trading Day immediately preceding the date of the applicable Exercise Notice if such Exercise Notice
is (1) both executed and delivered pursuant to Section 1(a) hereof on a day that is not a Trading Day or (2) both
executed and delivered pursuant to Section 1(a) hereof on a Trading Day prior to the opening of “regular trading hours”
(as defined in Rule 600(b)(64) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) at
the option of the Holder, either (y) the VWAP on the Trading Day immediately preceding the date of the applicable Exercise Notice
or (z) the Bid Price of the Ordinary Shares as of the time of the Holder’s execution of the applicable Exercise Notice if such
Exercise Notice is executed during “regular trading hours” on a Trading Day and is delivered within two (2) hours thereafter
pursuant to Section 1(a) hereof, or (iii) the VWAP of the Ordinary Shares on the date of the applicable Exercise Notice
if the date of such Exercise Notice is a Trading Day and such Exercise Notice is both executed and delivered pursuant to Section 1(a) hereof
after the close of “regular trading hours” on such Trading Day.
C = the Exercise
Price then in effect for the applicable Warrant Shares at the time of such exercise.
If the Warrant Shares are issued
in a Cashless Exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the 1933 Act, the Warrant
Shares take on the registered characteristics of the Warrants being exercised. For purposes of Rule 144(d) promulgated under
the 1933 Act, as in effect on the Subscription Date, it is intended that the Warrant Shares issued in a Cashless Exercise shall be deemed
to have been acquired by the Holder, and the holding period for the Warrant Shares shall be deemed to have commenced, on the date this
Warrant was originally issued pursuant to the Securities Purchase Agreement.
Notwithstanding the foregoing,
if at any time after [ ]2 the resale by the Holder of all,
or any part, of the Warrant Shares issuable upon exercise of this Warrant are not registered and available to be issued to the Holder
without legend or other restrictions pursuant to an effective registration statement (such Warrant Shares, the “Unavailable Warrant
Shares”), in lieu of the Ordinary Shares to be issued in a Cashless Exercise pursuant to the formula above, the Holder may,
by delivery of an Exercise Notice to the Company, alternatively exchange such portion of this Warrant exercisable into such Unavailable
Warrant Shares into such aggregate number of Ordinary Shares equal to the product of (x) 0.45 and (y) such portion of this Warrant
exercisable into such Unavailable Warrant Shares as specified in such applicable Exercise Notice (each, an “Alternate Cashless
Exercise”, and such aggregate number of Ordinary Shares to be issued in such applicable Alternate Cashless Exercise, the “Alternate
Cashless Exercise Amount”).
(e) Disputes.
In the case of a dispute as to the determination of the Exercise Price or the arithmetic calculation of the number of Warrant Shares
to be issued pursuant to the terms hereof, the Company shall promptly issue to the Holder the number of Warrant Shares that are not disputed
and resolve such dispute in accordance with Section 15.
2 Insert first anniversary of the Issuance Date
(f) Limitations
on Exercises.
(i) Beneficial
Ownership. The Company shall not effect the exercise of any portion of this Warrant, and the Holder shall not have the right to exercise
any portion of this Warrant, pursuant to the terms and conditions of this Warrant and any such exercise shall be null and void and treated
as if never made, to the extent that after giving effect to such exercise, the Holder together with the other Attribution Parties collectively
would beneficially own in excess of 4.99% (the “Maximum Percentage”) of the Ordinary Shares outstanding immediately
after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of Ordinary Shares beneficially owned
by the Holder and the other Attribution Parties shall include the number of Ordinary Shares held by the Holder and all other Attribution
Parties plus the number of Ordinary Shares issuable upon exercise of this Warrant with respect to which the determination of such sentence
is being made, but shall exclude Ordinary Shares which would be issuable upon (A) exercise of the remaining, unexercised portion
of this Warrant beneficially owned by the Holder or any of the other Attribution Parties and (B) exercise or conversion of the unexercised
or unconverted portion of any other securities of the Company (including, without limitation, any convertible notes or convertible preferred
shares or warrants, including other SPA Warrants) beneficially owned by the Holder or any other Attribution Party subject to a limitation
on conversion or exercise analogous to the limitation contained in this Section 1(f)(i). For purposes of this Section 1(f)(i),
beneficial ownership shall be calculated in accordance with Section 13(d) of the 1934 Act. For purposes of determining the
number of outstanding Ordinary Shares the Holder may acquire upon the exercise of this Warrant without exceeding the Maximum Percentage,
the Holder may rely on the number of outstanding Ordinary Shares as reflected in (x) the Company’s most recent Annual Report
on Form 20-F, Report of Foreign Issuer on Form 6-K or other public filing with the SEC, as the case may be, (y) a more
recent public announcement by the Company or (z) any other written notice by the Company or the Transfer Agent, if any, setting
forth the number of Ordinary Shares outstanding (the “Reported Outstanding Share Number”). If the Company receives
an Exercise Notice from the Holder at a time when the actual number of outstanding Ordinary Shares is less than the Reported Outstanding
Share Number, the Company shall (i) notify the Holder in writing of the number of Ordinary Shares then outstanding and, to the extent
that such Exercise Notice would otherwise cause the Holder’s beneficial ownership, as determined pursuant to this Section 1(f)(i),
to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be acquired pursuant to
such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as
soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares.
For any reason at any time, upon the written or oral request of the Holder, the Company shall within one (1) Business Day confirm
orally and in writing or by electronic mail to the Holder the number of Ordinary Shares then outstanding. In any case, the number of
outstanding Ordinary Shares shall be determined after giving effect to the conversion or exercise of securities of the Company, including
this Warrant, by the Holder and any other Attribution Party since the date as of which the Reported Outstanding Share Number was reported.
In the event that the issuance of Ordinary Shares to the Holder upon exercise of this Warrant results in the Holder and the other Attribution
Parties being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding Ordinary Shares
(as determined under Section 13(d) of the 1934 Act), the number of shares so issued by which the Holder’s and the other
Attribution Parties’ aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall
be deemed null and void and shall be cancelled ab initio, and the Holder shall not have the power to vote or to transfer the Excess Shares.
As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to
the Holder the exercise price paid by the Holder for the Excess Shares. Upon delivery of a written notice to the Company, the Holder
may from time to time increase (with such increase not effective until the sixty-first (61st) day after delivery of such notice)
or decrease the Maximum Percentage to any other percentage not in excess of 9.99% as specified in such notice; provided that (i) any
such increase in the Maximum Percentage will not be effective until the sixty-first (61st) day after such notice is delivered
to the Company and (ii) any such increase or decrease will apply only to the Holder and the other Attribution Parties and not to
any other holder of SPA Warrants that is not an Attribution Party of the Holder. For purposes of clarity, the Ordinary Shares issuable
pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder
for any purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the 1934 Act. No prior inability to
exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with
respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner
otherwise than in strict conformity with the terms of this Section 1(f)(i) to the extent necessary to correct this paragraph
or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in
this Section 1(f)(i) or to make changes or supplements necessary or desirable to properly give effect to such limitation. The
limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.
(g) Reservation
of Shares.
(i) Required
Reserve Amount. Within ninety (90) calendar days from and after the date of the Issuance Date, and for so long as this Warrant remains
outstanding thereafter, the Company shall at all times keep reserved for issuance under this Warrant a number of Ordinary Shares at least
equal to 116% of the maximum number of Ordinary Shares as shall be necessary to satisfy the Company’s obligation to issue Ordinary
Shares under the SPA Warrants then outstanding (without regard to any limitations on exercise but assuming that all Additional Notes
(as defined in the Securities Purchase Agreement) issuable hereunder shall have been issued at an Additional Closing (as defined in the
Securities Purchase Agreement) on the Initial Closing Date (as defined in the Securities Purchase Agreement)) (the “Required
Reserve Amount”); provided that at no time shall the number of Ordinary Shares reserved pursuant to this Section 1(g)(i) be
reduced other than proportionally in connection with any exercise or redemption of SPA Warrants or such other event covered by Section 2(a) below.
The Required Reserve Amount (including, without limitation, each increase in the number of shares so reserved) shall be allocated pro
rata among the holders of the SPA Warrants based on number of Ordinary Shares issuable upon exercise of SPA Warrants held by each holder
on the Closing Date (without regard to any limitations on exercise) or increase in the number of reserved shares, as the case may be
(the “Authorized Share Allocation”). In the event that a holder shall sell or otherwise transfer any of such holder’s
SPA Warrants, each transferee shall be allocated a pro rata portion of such holder’s Authorized Share Allocation. Any Ordinary
Shares reserved and allocated to any Person which ceases to hold any SPA Warrants shall be allocated to the remaining holders of SPA
Warrants, pro rata based on the number of Ordinary Shares issuable upon exercise of the SPA Warrants then held by such holders (without
regard to any limitations on exercise).
(ii) Insufficient
Authorized Shares. If, notwithstanding Section 1(g)(i) above, and not in limitation thereof, at any time while any of the
SPA Warrants remain outstanding, the Company does not have a sufficient number of authorized and unreserved Ordinary Shares to satisfy
its obligation to reserve the Required Reserve Amount (an “Authorized Share Failure”), then the Company shall immediately
take all action necessary to increase the Company’s authorized Ordinary Shares to an amount sufficient to allow the Company to
reserve the Required Reserve Amount for all the SPA Warrants then outstanding. Without limiting the generality of the foregoing sentence,
as soon as practicable after the date of the occurrence of an Authorized Share Failure, but in no event later than seventy-five (75)
days after the occurrence of such Authorized Share Failure, the Company shall hold a meeting of its shareholders for the approval of
an increase in the number of authorized Ordinary Shares. In connection with such meeting, the Company shall provide each shareholder
with a proxy statement and shall use its best efforts to solicit its shareholders’ approval of such increase in authorized Ordinary
Shares and to cause its board of directors to recommend to the shareholders that they approve such proposal. Notwithstanding the foregoing,
if any such time of an Authorized Share Failure, the Company is able to obtain the written consent of a majority of the shares of its
issued and outstanding Ordinary Shares to approve the increase in the number of authorized Ordinary Shares, the Company may satisfy this
obligation by obtaining such consent and submitting for filing with the SEC an Information Statement on Schedule 14C. In the event that
the Company is prohibited from issuing Ordinary Shares upon an exercise of this Warrant due to the failure by the Company to have sufficient
Ordinary Shares available out of the authorized but unissued Ordinary Shares (such unavailable number of Ordinary Shares, the “Authorization
Failure Shares”), in lieu of delivering such Authorization Failure Shares to the Holder, the Company shall pay cash in exchange
for the cancellation of such portion of this Warrant exercisable into such Authorization Failure Shares at a price equal to the sum of
(i) the product of (x) such number of Authorization Failure Shares and (y) the greatest Closing Sale Price of the Ordinary
Shares on any Trading Day during the period commencing on the date the Holder delivers the applicable Exercise Notice with respect to
such Authorization Failure Shares to the Company and ending on the date of such issuance and payment under this Section 1(g); and
(ii) to the extent the Holder purchases (in an open market transaction or otherwise) Ordinary Shares to deliver in satisfaction
of a sale by the Holder of Authorization Failure Shares, any Buy-In Payment Amount, brokerage commissions and other out-of-pocket expenses,
if any, of the Holder incurred in connection therewith. Nothing contained in this Section 1(g) shall limit any obligations
of the Company under any provision of the Securities Purchase Agreement.
2. ADJUSTMENT
OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES. The Exercise Price and number of Warrant Shares
issuable upon exercise of this Warrant are subject to adjustment from time to time as set forth in this Section 2.
(a) Share
Dividends and Splits. Without limiting any provision of Section 2(b), Section 3 or Section 4, if the Company, at any
time on or after the Subscription Date, (i) pays a share dividend on one or more classes of its then outstanding Ordinary Shares
or otherwise makes a distribution on any class of share capital that is payable in Ordinary Shares, (ii) subdivides (by any share
split, share dividend, recapitalization or otherwise) one or more classes of its then outstanding Ordinary Shares into a larger number
of shares or (iii) combines (by combination, reverse share split or otherwise) one or more classes of its then outstanding Ordinary
Shares into a smaller number of shares, then in each such case the Exercise Price shall be multiplied by a fraction of which the numerator
shall be the number of Ordinary Shares outstanding immediately before such event and of which the denominator shall be the number of
Ordinary Shares outstanding immediately after such event. Any adjustment made pursuant to clause (i) of this paragraph shall become
effective immediately after the record date for the determination of shareholders entitled to receive such dividend or distribution,
and any adjustment pursuant to clause (ii) or (iii) of this paragraph shall become effective immediately after the effective
date of such subdivision or combination. If any event requiring an adjustment under this paragraph occurs during the period that an Exercise
Price is calculated hereunder, then the calculation of such Exercise Price shall be adjusted appropriately to reflect such event.
(b) Adjustment
Upon Issuance of Ordinary Shares. If and whenever on or after the Subscription Date, the Company grants, issues or sells (or enters
into any agreement to grant, issue or sell), or in accordance with this Section 2 is deemed to have granted, issued or sold, any
Ordinary Shares (including the issuance or sale of Ordinary Shares owned or held by or for the account of the Company, but excluding
any Excluded Securities granted issued or sold or deemed to have been granted issued or sold) for a consideration per share (the “New
Issuance Price”) less than a price equal to the Exercise Price in effect immediately prior to such granting, issuance or sale
or deemed granting, issuance or sale (such Exercise Price then in effect is referred to herein as the “Applicable Price”)
(the foregoing a “Dilutive Issuance”), then immediately after such Dilutive Issuance, the Exercise Price then in effect
shall be reduced to an amount equal to the New Issuance Price. For all purposes of the foregoing (including, without limitation, determining
the adjusted Exercise Price and the New Issuance Price under this Section 2(b)), the following shall be applicable:
(i) Issuance
of Options. If the Company in any manner grants, issues or sells (or enters into any agreement to grant, issue or sell) any Options
and the lowest price per share for which one Ordinary Share is at any time issuable upon the exercise of any such Option or upon conversion,
exercise or exchange of any Convertible Securities issuable upon exercise of any such Option or otherwise pursuant to the terms thereof
is less than the Applicable Price, then such Ordinary Share shall be deemed to be outstanding and to have been issued and sold by the
Company at the time of the granting, issuance or sale (or the time of execution of such agreement to grant, issue or sell, as applicable)
of such Option for such price per share. For purposes of this Section 2(b)(i), the “lowest price per share for which one Ordinary
Share is at any time issuable upon the exercise of any such Options or upon conversion, exercise or exchange of any Convertible Securities
issuable upon exercise of any such Option or otherwise pursuant to the terms thereof” shall be equal to (1) the lower of (x) the
sum of the lowest amounts of consideration (if any) received or receivable by the Company with respect to any one Ordinary Share upon
the granting, issuance or sale (or pursuant to the agreement to grant, issue or sell, as applicable) of such Option, upon exercise of
such Option and upon conversion, exercise or exchange of any Convertible Security issuable upon exercise of such Option or otherwise
pursuant to the terms thereof and (y) the lowest exercise price set forth in such Option for which one Ordinary Share is issuable
(or may become issuable assuming all possible market conditions) upon the exercise of any such Options or upon conversion, exercise or
exchange of any Convertible Securities issuable upon exercise of any such Option or otherwise pursuant to the terms thereof minus (2) the
sum of all amounts paid or payable to the holder of such Option (or any other Person) upon the granting, issuance or sale (or the agreement
to grant, issue or sell, as applicable) of such Option, upon exercise of such Option and upon conversion, exercise or exchange of any
Convertible Security issuable upon exercise of such Option or otherwise pursuant to the terms thereof plus the value of any other consideration
received or receivable by, or benefit conferred on, the holder of such Option (or any other Person). Except as contemplated below, no
further adjustment of the Exercise Price shall be made upon the actual issuance of such Ordinary Shares or of such Convertible Securities
upon the exercise of such Options or otherwise pursuant to the terms of or upon the actual issuance of such Ordinary Shares upon conversion,
exercise or exchange of such Convertible Securities.
(ii) Issuance
of Convertible Securities. If the Company in any manner issues or sells (or enters into any agreement to issue or sell) any Convertible
Securities and the lowest price per share for which one Ordinary Share is at any time issuable upon the conversion, exercise or exchange
thereof or otherwise pursuant to the terms thereof is less than the Applicable Price, then such Ordinary Share shall be deemed to be
outstanding and to have been issued and sold by the Company at the time of the issuance or sale (or the time of execution of such agreement
to issue or sell, as applicable) of such Convertible Securities for such price per share. For the purposes of this Section 2(b)(ii),
the “lowest price per share for which one Ordinary Share is at any time issuable upon the conversion, exercise or exchange thereof
or otherwise pursuant to the terms thereof” shall be equal to (1) the lower of (x) the sum of the lowest amounts of consideration
(if any) received or receivable by the Company with respect to one Ordinary Share upon the issuance or sale (or pursuant to the agreement
to issue or sell, as applicable) of the Convertible Security and upon conversion, exercise or exchange of such Convertible Security or
otherwise pursuant to the terms thereof and (y) the lowest conversion price set forth in such Convertible Security for which one
Ordinary Share is issuable (or may become issuable assuming all possible market conditions) upon conversion, exercise or exchange thereof
or otherwise pursuant to the terms thereof minus (2) the sum of all amounts paid or payable to the holder of such Convertible Security
(or any other Person) upon the issuance or sale (or the agreement to issue or sell, as applicable) of such Convertible Security plus
the value of any other consideration received or receivable by, or benefit conferred on, the holder of such Convertible Security (or
any other Person). Except as contemplated below, no further adjustment of the Exercise Price shall be made upon the actual issuance of
such Ordinary Shares upon conversion, exercise or exchange of such Convertible Securities or otherwise pursuant to the terms thereof,
and if any such issuance or sale of such Convertible Securities is made upon exercise of any Options for which adjustment of this Warrant
has been or is to be made pursuant to other provisions of this Section 2(b), except as contemplated below, no further adjustment
of the Exercise Price shall be made by reason of such issuance or sale.
(iii) Change
in Option Price or Rate of Conversion. If the purchase or exercise price provided for in any Options, the additional consideration,
if any, payable upon the issue, conversion, exercise or exchange of any Convertible Securities, or the rate at which any Convertible
Securities are convertible into or exercisable or exchangeable for Ordinary Shares increases or decreases at any time (other than proportional
changes in conversion or exercise prices, as applicable, in connection with an event referred to in Section 2(a)), the Exercise
Price in effect at the time of such increase or decrease shall be adjusted to the Exercise Price which would have been in effect at such
time had such Options or Convertible Securities provided for such increased or decreased purchase price, additional consideration or
increased or decreased conversion rate, as the case may be, at the time initially granted, issued or sold. For purposes of this Section 2(b)(ii),
if the terms of any Option or Convertible Security (including, without limitation, any Option or Convertible Security that was outstanding
as of the Subscription Date) are increased or decreased in the manner described in the immediately preceding sentence, then such Option
or Convertible Security and the Ordinary Shares deemed issuable upon exercise, conversion or exchange thereof shall be deemed to have
been issued as of the date of such increase or decrease. No adjustment pursuant to this Section 2(b) shall be made if such
adjustment would result in an increase of the Exercise Price then in effect.
(iv) Calculation
of Consideration Received. If any Option and/or Convertible Security and/or Adjustment Right is issued in connection with the issuance
or sale or deemed issuance or sale of any other securities of the Company (as determined by the Holder, the “Primary Security”,
and such Option and/or Convertible Security and/or Adjustment Right, the “Secondary Securities” and together with
the Primary Security, each a “Unit”), together comprising one integrated transaction, the aggregate consideration
per Ordinary Share with respect to such Primary Security shall be deemed to be the lower of (x) the purchase price of such Unit,
(y) if such Primary Security is an Option and/or Convertible Security, the lowest price per share for which one Ordinary Share is
at any time issuable upon the exercise or conversion of the Primary Security in accordance with Sections 2(b)(i) or 2(b)(ii) above
and (z) the average VWAP of the Ordinary Shares on any Trading Day during the five (5) Trading Day period (the “Adjustment
Period”) immediately following the public announcement of such Dilutive Issuance (for the avoidance of doubt, if such public
announcement is released prior to the opening of the Principal Market on a Trading Day, such Trading Day shall be the first Trading Day
in such five Trading Day period and if this Warrant is exercised, on any given Exercise Date during any such Adjustment Period, solely
with respect to such portion of this Warrant exercised on such applicable Exercise Date, such applicable Adjustment Period shall be deemed
to have ended on, and included, the Trading Day immediately prior to such Exercise Date). If any Ordinary Shares, Options or Convertible
Securities are issued or sold or deemed to have been issued or sold for cash, the consideration received therefor will be deemed to be
the net amount of consideration received by the Company therefor. If any Ordinary Shares, Options or Convertible Securities are issued
or sold for a consideration other than cash, the amount of such consideration received by the Company will be the fair value of such
consideration, except where such consideration consists of publicly traded securities, in which case the amount of consideration received
by the Company for such securities will be the arithmetic average of the VWAPs of such security for each of the five (5) Trading
Days immediately preceding the date of receipt. If any Ordinary Shares, Options or Convertible Securities are issued to the owners of
the non-surviving entity in connection with any merger in which the Company is the surviving entity, the amount of consideration therefor
will be deemed to be the fair value of such portion of the net assets and business of the non-surviving entity as is attributable to
such Ordinary Shares, Options or Convertible Securities (as the case may be). The fair value of any consideration other than cash or
publicly traded securities will be determined jointly by the Company and the Holder. If such parties are unable to reach agreement within
ten (10) days after the occurrence of an event requiring valuation (the “Valuation Event”), the fair value of
such consideration will be determined within five (5) Trading Days after the tenth (10th) day following such Valuation
Event by an independent, reputable appraiser jointly selected by the Company and the Holder. The determination of such appraiser shall
be final and binding upon all parties absent manifest error and the fees and expenses of such appraiser shall be borne by the Company.
(v) Record
Date. If the Company takes a record of the holders of Ordinary Shares for the purpose of entitling them (A) to receive a dividend
or other distribution payable in Ordinary Shares, Options or in Convertible Securities or (B) to subscribe for or purchase Ordinary
Shares, Options or Convertible Securities, then such record date will be deemed to be the date of the issuance or sale of the Ordinary
Shares deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date
of the granting of such right of subscription or purchase (as the case may be).
(c) Number
of Warrant Shares. Simultaneously with any adjustment to the Exercise Price pursuant to this Section 2, the number of Warrant
Shares that may be purchased upon exercise of this Warrant shall be increased or decreased proportionately, so that after such adjustment
the aggregate Exercise Price payable hereunder for the adjusted number of Warrant Shares shall be the same as the aggregate Exercise
Price in effect immediately prior to such adjustment (without regard to any limitations on exercise contained herein). If immediately
after any Additional Closing Date and/or Company Optional Redemption Date, as applicable (each an “Adjustment Date”),
the aggregate number of Warrant Shares then issuable upon exercise of this Warrant is less than the Maximum Eligibility Number immediately
after such Adjustment Date the aggregate number of Warrant Shares issuable upon exercise of this Warrant shall automatically increase
to such Maximum Eligibility Number (in each case, without regard to any limitations on exercise contained herein and without regard to
any prior exercises of this Warrant).
(d) Holder’s
Right of Alternative Exercise Price Following Issuance of Certain Options or Convertible Securities. In addition to and not in limitation
of the other provisions of this Section 2, if the Company in any manner issues or sells or enters into any agreement to issue or
sell, any Ordinary Shares, Options or Convertible Securities (any such securities, “Variable Price Securities”) after
the Subscription Date that are issuable pursuant to such agreement or convertible into or exchangeable or exercisable for Ordinary Shares
at a price which varies or may vary with the market price of the Ordinary Shares, including by way of one or more reset(s) to a
fixed price, but exclusive of such formulations reflecting customary anti-dilution provisions (such as share splits, share combinations,
share dividends and similar transactions) (each of the formulations for such variable price being herein referred to as, the “Variable
Price”), the Company shall provide written notice thereof via email to the Holder on the date of such agreement and the issuance
of such Convertible Securities or Options. From and after the date the Company enters into such agreement or issues any such Variable
Price Securities, the Holder shall have the right, but not the obligation, in its sole discretion to substitute the Variable Price for
the Exercise Price upon exercise of this Warrant by designating in the Exercise Notice delivered upon any exercise of this Warrant that
solely for purposes of such exercise the Holder is relying on the Variable Price rather than the Exercise Price then in effect. The Holder’s
election to rely on a Variable Price for a particular exercise of this Warrant shall not obligate the Holder to rely on a Variable Price
for any future exercises of this Warrant.
(e) Share
Combination Event Adjustment. If at any time and from time to time on or after the Issuance Date there occurs any share split, share
dividend, share combination recapitalization or other similar transaction involving the Ordinary Shares (each, a “Share Combination
Event”, and such date thereof, the “Share Combination Event Date”) and the Event Market Price is less than
the Exercise Price then in effect (after giving effect to the adjustment in clause 2(a) above), then on the sixteenth (16th) Trading
Day immediately following such Share Combination Event, the Exercise Price then in effect on such sixteenth (16th) Trading Day (after
giving effect to the adjustment in clause 2(a) above) shall be reduced (but in no event increased) to the Event Market Price. For
the avoidance of doubt, if the adjustment in the immediately preceding sentence would otherwise result in an increase in the Exercise
Price hereunder, no adjustment shall be made.
(f) Reset
of Exercise Price. On [ ]3 (the “Reset Date”),
if the Reset Price (as defined below), is less than the Exercise Price then in effect, the Exercise Price shall be automatically reduced
to the Reset Price. “Reset Price” means the VWAP of the Ordinary Shares on any Trading Day during the ten (10) Trading
Day period ending, and including, the Trading Day immediately prior to the Reset Date (as adjusted for share splits, share dividends,
share combinations, recapitalizations and similar events during such measuring period).
(g) Other
Events. In the event that the Company (or any Subsidiary (as defined in the Securities Purchase Agreement)) shall take any action
to which the provisions hereof are not strictly applicable, or, if applicable, would not operate to protect the Holder from dilution
or if any event occurs of the type contemplated by the provisions of this Section 2 but not expressly provided for by such provisions
(including, without limitation, the granting of share appreciation rights, phantom share rights or other rights with equity features),
then the Company’s board of directors shall in good faith determine and implement an appropriate adjustment in the Exercise Price
and the number of Warrant Shares (if applicable) so as to protect the rights of the Holder, provided that no such adjustment pursuant
to this Section 2(f) will increase the Exercise Price or decrease the number of Warrant Shares as otherwise determined pursuant
to this Section 2, provided further that if the Holder does not accept such adjustments as appropriately protecting its interests
hereunder against such dilution, then the Company’s board of directors and the Holder shall agree, in good faith, upon an independent
investment bank of nationally recognized standing to make such appropriate adjustments, whose determination shall be final and binding
absent manifest error and whose fees and expenses shall be borne by the Company.
3 Insert 9 month anniversary of Issuance Date (or, if applicable,
the first Trading Day thereafter)
(h) Calculations.
All calculations under this Section 2 shall be made by rounding to the nearest cent or the nearest 1/100th of a share,
as applicable. The number of Ordinary Shares outstanding at any given time shall not include shares owned or held by or for the account
of the Company, and the disposition of any such shares shall be considered an issuance or sale of Ordinary Shares.
(i) Voluntary
Adjustment By Company. Subject to the rules and regulations of the Principal Market, the Company may at any time during the
term of this Warrant, with the prior written consent of the Required Holders (as defined in the Securities Purchase Agreement), reduce
the then current Exercise Price to any amount and for any period of time deemed appropriate by the board of directors of the Company.
3. RIGHTS
UPON DISTRIBUTION OF ASSETS. In addition to any adjustments pursuant to Section 2 above
or Section 4 below, if the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire
its assets) to holders of Ordinary Shares, by way of return of capital or otherwise (including, without limitation, any distribution
of cash, shares or other securities, property, options, evidence of indebtedness or any other assets by way of a dividend, spin off,
reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”),
at any time after the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution
to the same extent that the Holder would have participated therein if the Holder had held the number of Ordinary Shares acquirable upon
complete exercise of this Warrant (without regard to any limitations or restrictions on exercise of this Warrant, including without limitation,
the Maximum Percentage) immediately before the date on which a record is taken for such Distribution, or, if no such record is taken,
the date as of which the record holders of Ordinary Shares are to be determined for the participation in such Distribution (provided,
however, that to the extent that the Holder’s right to participate in any such Distribution would result in the Holder and the
other Attribution Parties exceeding the Maximum Percentage, then the Holder shall not be entitled to participate in such Distribution
to the extent of the Maximum Percentage (and shall not be entitled to beneficial ownership of such Ordinary Shares as a result of such
Distribution (and beneficial ownership) to the extent of any such excess) and the portion of such Distribution shall be held in abeyance
for the benefit of the Holder until such time or times, if ever, as its right thereto would not result in the Holder and the other Attribution
Parties exceeding the Maximum Percentage, at which time or times the Holder shall be granted such Distribution (and any Distributions
declared or made on such initial Distribution or on any subsequent Distribution held similarly in abeyance) to the same extent as if
there had been no such limitation).
4. PURCHASE
RIGHTS; FUNDAMENTAL TRANSACTIONS.
(a) Purchase
Rights. In addition to any adjustments pursuant to Sections 2 or 3 above, if at any time the Company grants, issues or sells
any Options, Convertible Securities or rights to purchase shares, warrants, securities or other property pro rata to the record holders
of any class of Ordinary Shares (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms
applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number
of Ordinary Shares acquirable upon complete exercise of this Warrant (without regard to any limitations or restrictions on exercise of
this Warrant, including without limitation, the Maximum Percentage) immediately before the date on which a record is taken for the grant,
issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of Ordinary Shares
are to be determined for the grant, issuance or sale of such Purchase Rights (provided, however, that to the extent that
the Holder’s right to participate in any such Purchase Right would result in the Holder and the other Attribution Parties exceeding
the Maximum Percentage, then the Holder shall not be entitled to participate in such Purchase Right to the extent of the Maximum Percentage
(and shall not be entitled to beneficial ownership of such Ordinary Shares as a result of such Purchase Right (and beneficial ownership)
to the extent of any such excess) and such Purchase Right to such extent shall be held in abeyance for the benefit of the Holder until
such time or times, if ever, as its right thereto would not result in the Holder and the other Attribution Parties exceeding the Maximum
Percentage, at which time or times the Holder shall be granted such right (and any Purchase Right granted, issued or sold on such initial
Purchase Right or on any subsequent Purchase Right held similarly in abeyance) to the same extent as if there had been no such limitation).
(b) Fundamental
Transactions. The Company shall not enter into or be party to a Fundamental Transaction unless (i) the Successor Entity assumes
in writing all of the obligations of the Company under this Warrant and the other Transaction Documents (as defined in the Securities
Purchase Agreement) in accordance with the provisions of this Section 4(b) pursuant to written agreements in form and substance
satisfactory to the Holder and approved by the Holder prior to such Fundamental Transaction, including agreements to deliver to the Holder
in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance
to this Warrant, including, without limitation, which is exercisable for a corresponding amount of share capital equivalent to the Ordinary
Shares acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior
to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such share capital (but taking
into account the relative value of the Ordinary Shares pursuant to such Fundamental Transaction and the value of such share capital,
such adjustments to the amount of share capital and such exercise price being for the purpose of protecting the economic value of this
Warrant immediately prior to the consummation of such Fundamental Transaction) and (ii) the Successor Entity (including its Parent
Entity) is a publicly traded corporation whose Ordinary Shares is quoted on or listed for trading on an Eligible Market. Upon the consummation
of each Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of the
applicable Fundamental Transaction, the provisions of this Warrant and the other Transaction Documents referring to the “Company”
shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations
of the Company under this Warrant and the other Transaction Documents with the same effect as if such Successor Entity had been named
as the Company herein. Upon consummation of each Fundamental Transaction, the Successor Entity shall deliver to the Holder confirmation
that there shall be issued upon exercise of this Warrant at any time after the consummation of the applicable Fundamental Transaction,
in lieu of the Ordinary Shares (or other securities, cash, assets or other property (except such items still issuable under Sections 3
and 4(a) above, which shall continue to be receivable thereafter)) issuable upon the exercise of this Warrant prior to the applicable
Fundamental Transaction, such shares of publicly traded Ordinary Shares (or its equivalent) of the Successor Entity (including its Parent
Entity) which the Holder would have been entitled to receive upon the happening of the applicable Fundamental Transaction had this Warrant
been exercised immediately prior to the applicable Fundamental Transaction (without regard to any limitations on the exercise of this
Warrant), as adjusted in accordance with the provisions of this Warrant. Notwithstanding the foregoing, and without limiting Section 1(f) hereof,
the Holder may elect, at its sole option, by delivery of written notice to the Company to waive this Section 4(b) to permit
the Fundamental Transaction without the assumption of this Warrant. In addition to and not in substitution for any other rights hereunder,
prior to the consummation of each Fundamental Transaction pursuant to which holders of Ordinary Shares are entitled to receive securities
or other assets with respect to or in exchange for Ordinary Shares (a “Corporate Event”), the Company shall make appropriate
provision to insure that the Holder will thereafter have the right to receive upon an exercise of this Warrant at any time after the
consummation of the applicable Fundamental Transaction but prior to the Expiration Date, in lieu of the shares of the Ordinary Shares
(or other securities, cash, assets or other property (except such items still issuable under Sections 3 and 4(a) above, which
shall continue to be receivable thereafter)) issuable upon the exercise of the Warrant prior to such Fundamental Transaction, such shares,
securities, cash, assets or any other property whatsoever (including warrants or other purchase or subscription rights) which the Holder
would have been entitled to receive upon the happening of the applicable Fundamental Transaction had this Warrant been exercised immediately
prior to the applicable Fundamental Transaction (without regard to any limitations on the exercise of this Warrant). Provision made pursuant
to the preceding sentence shall be in a form and substance reasonably satisfactory to the Holder.
(c) Black
Scholes Value. Notwithstanding the foregoing and the provisions of Section 4(b) above, at the request of the Holder delivered
at any time commencing on the earliest to occur of (x) the public disclosure of any Change of Control, (y) the consummation
of any Change of Control and (z) the Holder first becoming aware of any Change of Control through the date that is ninety (90) days
after the public disclosure of the consummation of such Change of Control by the Company pursuant to a Report of Foreign Issuer on Form 6-K
filed with the SEC, the Company or the Successor Entity (as the case may be) shall purchase this Warrant from the Holder on the date
of such request by paying to the Holder cash in an amount equal to the Black Scholes Value. Payment of such amounts shall be made by
the Company (or at the Company’s direction) to the Holder on or prior to the later of (x) the second (2nd) Trading
Day after the date of such request and (y) the date of consummation of such Change of Control.
(d) Application.
The provisions of this Section 4 shall apply similarly and equally to successive Fundamental Transactions and Corporate Events and
shall be applied as if this Warrant (and any such subsequent warrants) were fully exercisable and without regard to any limitations on
the exercise of this Warrant (provided that the Holder shall continue to be entitled to the benefit of the Maximum Percentage, applied
however with respect to share capital registered under the 1934 Act and thereafter receivable upon exercise of this Warrant (or any such
other warrant)).
5. NONCIRCUMVENTION.
The Company hereby covenants and agrees that the Company will not, by amendment of its Memorandum and Articles (as defined in the Securities
Purchase Agreement) or through any reorganization, transfer of assets, consolidation, merger, scheme of arrangement, dissolution, issuance
or sale of securities, or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this
Warrant, and will at all times in good faith carry out all the provisions of this Warrant and take all action as may be required to protect
the rights of the Holder. Without limiting the generality of the foregoing, the Company (a) shall not increase the par value of
any Ordinary Shares receivable upon the exercise of this Warrant above the Exercise Price then in effect, and (b) shall take all
such actions as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and non-assessable
Ordinary Shares upon the exercise of this Warrant. Notwithstanding anything herein to the contrary, if after the seventy-fifth (75th)
calendar day anniversary of the Issuance Date, the Holder is not permitted to exercise this Warrant in full for any reason (other than
pursuant to restrictions set forth in Section 1(f) hereof), the Company shall use its best efforts to promptly remedy such
failure, including, without limitation, obtaining such consents or approvals as necessary to permit such exercise into Ordinary Shares.
6. WARRANT
HOLDER NOT DEEMED A SHAREHOLDER. Except as otherwise specifically provided herein, the Holder,
solely in its capacity as a holder of this Warrant, shall not be entitled to vote or receive dividends or be deemed the holder of shares
of the Company for any purpose, nor shall anything contained in this Warrant be construed to confer upon the Holder, solely in its capacity
as the Holder of this Warrant, any of the rights of a shareholder of the Company or any right to vote, give or withhold consent to any
corporate action (whether any reorganization, issue of shares, reclassification of shares, consolidation, merger, conveyance or otherwise),
receive notice of meetings, receive dividends or subscription rights, or otherwise, prior to the issuance to the Holder of the Warrant
Shares which it is then entitled to receive upon the due exercise of this Warrant. In addition, nothing contained in this Warrant shall
be construed as imposing any liabilities on the Holder to purchase any securities (upon exercise of this Warrant or otherwise) or as
a shareholder of the Company, whether such liabilities are asserted by the Company or by creditors of the Company. Notwithstanding this
Section 6, the Company shall provide the Holder (or made available through the EDGAR system) with copies of the same notices and
other information given to the shareholders of the Company generally, contemporaneously with the giving thereof to the shareholders.
7. REISSUANCE
OF WARRANTS.
(a) Transfer
of Warrant. If this Warrant is to be transferred, the Holder shall surrender this Warrant to the Company, whereupon the Company will
forthwith issue and deliver upon the order of the Holder a new Warrant (in accordance with Section 7(d)), registered as the Holder
may request, representing the right to purchase the number of Warrant Shares being transferred by the Holder and, if less than the total
number of Warrant Shares then underlying this Warrant is being transferred, a new Warrant (in accordance with Section 7(d)) to the
Holder representing the right to purchase the number of Warrant Shares not being transferred.
(b) Lost,
Stolen or Mutilated Warrant. Upon receipt by the Company of evidence reasonably satisfactory to the Company of the loss, theft, destruction
or mutilation of this Warrant (as to which a written certification and the indemnification contemplated below shall suffice as such evidence),
and, in the case of loss, theft or destruction, of any indemnification undertaking by the Holder to the Company in customary and reasonable
form and, in the case of mutilation, upon surrender and cancellation of this Warrant, the Company shall execute and deliver to the Holder
a new Warrant (in accordance with Section 7(d)) representing the right to purchase the Warrant Shares then underlying this Warrant.
(c) Exchangeable
for Multiple Warrants. This Warrant is exchangeable, upon the surrender hereof by the Holder at the principal office of the Company,
for a new Warrant or Warrants (in accordance with Section 7(d)) representing in the aggregate the right to purchase the number of
Warrant Shares then underlying this Warrant, and each such new Warrant will represent the right to purchase such portion of such Warrant
Shares as is designated by the Holder at the time of such surrender; provided, however, no warrants for fractional Ordinary Shares shall
be given.
(d) Issuance
of New Warrants. Whenever the Company is required to issue a new Warrant pursuant to the terms of this Warrant, such new Warrant
(i) shall be of like tenor with this Warrant, (ii) shall represent, as indicated on the face of such new Warrant, the right
to purchase the Warrant Shares then underlying this Warrant (or in the case of a new Warrant being issued pursuant to Section 7(a) or
Section 7(c), the Warrant Shares designated by the Holder which, when added to the number of Ordinary Shares underlying the other
new Warrants issued in connection with such issuance, does not exceed the number of Warrant Shares then underlying this Warrant), (iii) shall
have an issuance date, as indicated on the face of such new Warrant which is the same as the Issuance Date, and (iv) shall have
the same rights and conditions as this Warrant.
8. NOTICES.
Whenever notice is required to be given under this Warrant, unless otherwise provided herein, such notice shall be given in accordance
with Section 9(f) of the Securities Purchase Agreement. The Company shall provide the Holder with prompt written notice of
all actions taken pursuant to this Warrant (other than the issuance of Ordinary Shares upon exercise in accordance with the terms hereof),
including in reasonable detail a description of such action and the reason therefor. Without limiting the generality of the foregoing,
the Company will give written notice to the Holder (i) immediately upon each adjustment of the Exercise Price and the number of
Warrant Shares, setting forth in reasonable detail, and certifying, the calculation of such adjustment(s), (ii) at least fifteen
(15) days prior to the date on which the Company closes its books or takes a record (A) with respect to any dividend or distribution
upon the Ordinary Shares, (B) with respect to any grants, issuances or sales of any Options, Convertible Securities or rights to
purchase shares, warrants, securities or other property to holders of Ordinary Shares or (C) for determining rights to vote with
respect to any Fundamental Transaction, dissolution or liquidation, provided in each case that such information shall be made known to
the public prior to or in conjunction with such notice being provided to the Holder, and (iii) at least ten (10) Trading Days
prior to the consummation of any Fundamental Transaction. To the extent that any notice provided hereunder constitutes, or contains,
material, non-public information regarding the Company or any of its Subsidiaries, the Company shall simultaneously file such notice
with the SEC (as defined in the Securities Purchase Agreement) pursuant to a Report of Foreign Issuer on Form 6-K. If the Company
or any of its Subsidiaries provides material non-public information to the Holder that is not simultaneously filed in a Report of Foreign
Issuer on Form 6-K and the Holder has not agreed to receive such material non-public information, the Company hereby covenants and
agrees that the Holder shall not have any duty of confidentiality to the Company, any of its Subsidiaries or any of their respective
officers, directors, employees, affiliates or agents with respect to, or a duty to any of the foregoing not to trade on the basis of,
such material non-public information. It is expressly understood and agreed that the time of execution specified by the Holder in each
Exercise Notice shall be definitive and may not be disputed or challenged by the Company.
9. DISCLOSURE.
Upon delivery by the Company to the Holder (or receipt by the Company from the Holder) of any notice in accordance with the terms of
this Warrant, unless the Company has in good faith determined that the matters relating to such notice do not constitute material, non-public
information relating to the Company or any of its Subsidiaries, the Company shall on or prior to 9:00 am, New York city time on the Business
Day immediately following such notice delivery date, publicly disclose such material, non-public information on a Report of Foreign Issuer
on Form 6-K or otherwise. In the event that the Company believes that a notice contains material, non-public information relating
to the Company or any of its Subsidiaries, the Company so shall indicate to the Holder explicitly in writing in such notice (or immediately
upon receipt of notice from the Holder, as applicable), and in the absence of any such written indication in such notice (or notification
from the Company immediately upon receipt of notice from the Holder), the Holder shall be entitled to presume that information contained
in the notice does not constitute material, non-public information relating to the Company or any of its Subsidiaries. Nothing contained
in this Section 9 shall limit any obligations of the Company, or any rights of the Holder, under Section 4(i) of the Securities
Purchase Agreement.
10. ABSENCE
OF TRADING AND DISCLOSURE RESTRICTIONS. The Company acknowledges and agrees that the Holder is not a fiduciary or agent of the Company
and that the Holder shall have no obligation to (a) maintain the confidentiality of any information provided by the Company or (b) refrain
from trading any securities while in possession of such information in the absence of a written non-disclosure agreement signed by an
officer of the Holder that explicitly provides for such confidentiality and trading restrictions. In the absence of such an executed,
written non-disclosure agreement, the Company acknowledges that the Holder may freely trade in any securities issued by the Company,
may possess and use any information provided by the Company in connection with such trading activity, and may disclose any such information
to any third party.
11. AMENDMENT
AND WAIVER. Except as otherwise provided herein, the provisions of this Warrant (other than
Section 1(f)) may be amended and the Company may take any action herein prohibited, or omit to perform any act herein required to
be performed by it, only if the Company has obtained the written consent of the Holder. No waiver shall be effective unless it is in
writing and signed by an authorized representative of the waiving party.
12. SEVERABILITY.
If any provision of this Warrant is prohibited by law or otherwise determined to be invalid or unenforceable by a court of competent
jurisdiction, the provision that would otherwise be prohibited, invalid or unenforceable shall be deemed amended to apply to the broadest
extent that it would be valid and enforceable, and the invalidity or unenforceability of such provision shall not affect the validity
of the remaining provisions of this Warrant so long as this Warrant as so modified continues to express, without material change, the
original intentions of the parties as to the subject matter hereof and the prohibited nature, invalidity or unenforceability of the provision(s) in
question does not substantially impair the respective expectations or reciprocal obligations of the parties or the practical realization
of the benefits that would otherwise be conferred upon the parties. The parties will endeavor in good faith negotiations to replace the
prohibited, invalid or unenforceable provision(s) with a valid provision(s), the effect of which comes as close as possible to that
of the prohibited, invalid or unenforceable provision(s).
13. GOVERNING
LAW. This Warrant shall be governed by and construed and enforced in accordance with, and all
questions concerning the construction, validity, interpretation and performance of this Warrant shall be governed by, the internal laws
of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State
of New York or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of New
York. The Company hereby irrevocably waives personal service of process and consents to process being served in any such suit, action
or proceeding by mailing a copy thereof to the Company at the address set forth in Section 9(f) of the Securities Purchase
Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. The Company hereby
irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in The City of New York, Borough of Manhattan,
for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein,
and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject
to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of
such suit, action or proceeding is improper. Nothing contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. Nothing contained herein shall be deemed or operate to preclude the Holder from bringing suit or taking
other legal action against the Company in any other jurisdiction to collect on the Company’s obligations to the Holder, to realize
on any collateral or any other security for such obligations, or to enforce a judgment or other court ruling in favor of the Holder.
The Company hereby appoints Cogency Global Inc. as its agent for service of process in New York. If service of process is effected pursuant
to the above sentence, such service will be deemed sufficient under New York law and the Company shall not assert otherwise. Nothing
contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. Nothing contained herein
shall be deemed or operate to preclude the Holder from bringing suit or taking other legal action against the Company in any other jurisdiction
to collect on the Company’s obligations to such Buyer or to enforce a judgment or other court ruling in favor of the Holder. THE
COMPANY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY
DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS WARRANT OR ANY TRANSACTION CONTEMPLATED HEREBY. The choice of the
laws of the State of New York as the governing law of this Warrant is a valid choice of law and would be recognized and given effect
to in any action brought before a court of competent jurisdiction in the Cayman Islands or such other jurisdiction applicable to the
Company or any of its Subsidiaries except for those laws (i) which such court considers to be procedural in nature, (ii) which
are revenue or penal laws or (iii) the application of which would be inconsistent with public policy, as such term is interpreted
under the laws of the Cayman Islands or such other jurisdiction applicable to the Company or any of its Subsidiaries. The Company or
any of their respective properties, assets or revenues does not have any right of immunity under Cayman Islands or such other jurisdiction
applicable to the Company or any of its Subsidiaries or New York law, from any legal action, suit or proceeding, from the giving of any
relief in any such legal action, suit or proceeding, from set-off or counterclaim, from the jurisdiction of any Cayman Islands or such
other jurisdiction applicable to the Company or any of its Subsidiaries or any New York or United States federal court, from service
of process, attachment upon or prior to judgment, or attachment in aid of execution of judgment, or from execution of a judgment, or
other legal process or proceeding for the giving of any relief or for the enforcement of a judgment, in any such court, with respect
to its obligations, liabilities or any other matter under or arising out of or in connection with the Transaction Documents; and, to
the extent that the Company, or any of its properties, assets or revenues may have or may hereafter become entitled to any such right
of immunity in any such court in which proceedings may at any time be commenced, the Company hereby waives such right to the extent permitted
by law and hereby consents to such relief and enforcement as provided in this Warrant and the other Transaction Documents.
14. CONSTRUCTION;
HEADINGS. This Warrant shall be deemed to be jointly drafted by the Company and the Holder and
shall not be construed against any Person as the drafter hereof. The headings of this Warrant are for convenience of reference and shall
not form part of, or affect the interpretation of, this Warrant. Terms used in this Warrant but defined in the other Transaction Documents
shall have the meanings ascribed to such terms on the Closing Date (as defined in the Securities Purchase Agreement) in such other Transaction
Documents unless otherwise consented to in writing by the Holder.
15. DISPUTE
RESOLUTION.
(a) Submission
to Dispute Resolution.
(i) In
the case of a dispute relating to the Exercise Price, the Closing Sale Price, the Bid Price, Black Scholes Value or fair market value
or the arithmetic calculation of the number of Warrant Shares (as the case may be) (including, without limitation, a dispute relating
to the determination of any of the foregoing), the Company or the Holder (as the case may be) shall submit the dispute to the other party
via email (A) if by the Company, within two (2) Business Days after the occurrence of the circumstances giving rise to such
dispute or (B) if by the Holder, at any time after the Holder learned of the circumstances giving rise to such dispute. If the Holder
and the Company are unable to promptly resolve such dispute relating to such Exercise Price, such Closing Sale Price, such Bid Price,
Black Scholes Value or such fair market value or such arithmetic calculation of the number of Warrant Shares (as the case may be), at
any time after the second (2nd) Business Day following such initial notice by the Company or the Holder (as the case may be)
of such dispute to the Company or the Holder (as the case may be), then the Holder may, at its sole option, select an independent, reputable
investment bank to resolve such dispute.
(ii) The
Holder and the Company shall each deliver to such investment bank (A) a copy of the initial dispute submission so delivered in accordance
with the first sentence of this Section 15 and (B) written documentation supporting its position with respect to such dispute,
in each case, no later than 5:00 p.m. (New York time) by the fifth (5th) Business Day immediately following the date
on which the Holder selected such investment bank (the “Dispute Submission Deadline”) (the documents referred to in
the immediately preceding clauses (A) and (B) are collectively referred to herein as the “Required Dispute Documentation”)
(it being understood and agreed that if either the Holder or the Company fails to so deliver all of the Required Dispute Documentation
by the Dispute Submission Deadline, then the party who fails to so submit all of the Required Dispute Documentation shall no longer be
entitled to (and hereby waives its right to) deliver or submit any written documentation or other support to such investment bank with
respect to such dispute and such investment bank shall resolve such dispute based solely on the Required Dispute Documentation that was
delivered to such investment bank prior to the Dispute Submission Deadline). Unless otherwise agreed to in writing by both the Company
and the Holder or otherwise requested by such investment bank, neither the Company nor the Holder shall be entitled to deliver or submit
any written documentation or other support to such investment bank in connection with such dispute (other than the Required Dispute Documentation).
(iii) The
Company and the Holder shall cause such investment bank to determine the resolution of such dispute and notify the Company and the Holder
of such resolution no later than ten (10) Business Days immediately following the Dispute Submission Deadline. The fees and expenses
of such investment bank shall be borne solely by the Company, and such investment bank’s resolution of such dispute shall be final
and binding upon all parties absent manifest error.
(b) Miscellaneous.
The Company expressly acknowledges and agrees that (i) this Section 15 constitutes an agreement to arbitrate between the Company
and the Holder (and constitutes an arbitration agreement) under the rules then in effect under the New York State arbitration law,
(ii) a dispute relating to the Exercise Price includes, without limitation, disputes as to (A) whether an issuance or sale
or deemed issuance or sale of Ordinary Shares occurred under Section 2(b), (B) the consideration per share at which an issuance
or deemed issuance of Ordinary Shares occurred, (C) whether any issuance or sale or deemed issuance or sale of Ordinary Shares was
an issuance or sale or deemed issuance or sale of Excluded Securities, and (D) whether an agreement, instrument, security or the
like constitutes and Option or Convertible Security and (E) whether a Dilutive Issuance occurred, (iii) the terms of this Warrant
and each other applicable Transaction Document shall serve as the basis for the selected investment bank’s resolution of the applicable
dispute, such investment bank shall be entitled (and is hereby expressly authorized) to make all findings, determinations and the like
that such investment bank determines are required to be made by such investment bank in connection with its resolution of such dispute
(including, without limitation, determining (A) whether an issuance or sale or deemed issuance or sale of Ordinary Shares occurred
under Section 2(b), (B) the consideration per share at which an issuance or deemed issuance of Ordinary Shares occurred, (C) whether
any issuance or sale or deemed issuance or sale of Ordinary Shares was an issuance or sale or deemed issuance or sale of Excluded Securities,
(D) whether an agreement, instrument, security or the like constitutes and Option or Convertible Security and (E) whether a
Dilutive Issuance occurred) and in resolving such dispute such investment bank shall apply such findings, determinations and the like
to the terms of this Warrant and any other applicable Transaction Documents, (iv) the Holder (and only the Holder), in its sole
discretion, shall have the right to submit any dispute described in this Section 15 to any state or federal court sitting in The
City of New York, Borough of Manhattan in lieu of utilizing the procedures set forth in this Section 15 and (v) nothing in
this Section 15 shall limit the Holder from obtaining any injunctive relief or other equitable remedies (including, without limitation,
with respect to any matters described in this Section 15).
16. REMEDIES,
CHARACTERIZATION, OTHER OBLIGATIONS, BREACHES AND INJUNCTIVE RELIEF. The remedies provided in
this Warrant shall be cumulative and in addition to all other remedies available under this Warrant and the other Transaction Documents,
at law or in equity (including a decree of specific performance and/or other injunctive relief), and nothing herein shall limit the right
of the Holder to pursue actual and consequential damages for any failure by the Company to comply with the terms of this Warrant. The
Company covenants to the Holder that there shall be no characterization concerning this instrument other than as expressly provided herein.
Amounts set forth or provided for herein with respect to payments, exercises and the like (and the computation thereof) shall be the
amounts to be received by the Holder and shall not, except as expressly provided herein, be subject to any other obligation of the Company
(or the performance thereof). The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to
the Holder and that the remedy at law for any such breach may be inadequate. The Company therefore agrees that, in the event of any such
breach or threatened breach, the holder of this Warrant shall be entitled, in addition to all other available remedies, to specific performance
and/or temporary, preliminary and permanent injunctive or other equitable relief from any court of competent jurisdiction in any such
case without the necessity of proving actual damages and without posting a bond or other security. The Company shall provide all information
and documentation to the Holder that is requested by the Holder to enable the Holder to confirm the Company’s compliance with the
terms and conditions of this Warrant (including, without limitation, compliance with Section 2 hereof). The issuance of shares and
certificates for shares as contemplated hereby upon the exercise of this Warrant shall be made without charge to the Holder or such shares
for any issuance tax or other costs in respect thereof, provided 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 certificate in a name other than the Holder or its agent on its
behalf.
17. PAYMENT
OF COLLECTION, ENFORCEMENT AND OTHER COSTS. If (a) this Warrant is placed in the hands
of an attorney for collection or enforcement or is collected or enforced through any legal proceeding or the holder otherwise takes action
to collect amounts due under this Warrant or to enforce the provisions of this Warrant or (b) there occurs any bankruptcy, reorganization,
receivership of the company or other proceedings affecting company creditors’ rights and involving a claim under this Warrant,
then the Company shall pay the costs incurred by the Holder for such collection, enforcement or action or in connection with such bankruptcy,
reorganization, receivership or other proceeding, including, without limitation, attorneys’ fees and disbursements.
18. TRANSFER.
This Warrant may be offered for sale, sold, transferred or assigned without the consent of the Company, except as may otherwise be required
by Section 2(g) of the Securities Purchase Agreement.
19. CERTAIN
DEFINITIONS. For purposes of this Warrant, the following terms shall have the following meanings:
(a) “1933
Act” means the Securities Act of 1933, as amended, and the rules and regulations thereunder.
(b) “1934
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder.
(c) “Additional
Share Amount” means, with respect to any given Additional Closing (as defined in the Securities Purchase Agreement), such aggregate
number of Ordinary Shares equal to 60% of the quotient of (x) the aggregate principal amount of Additional Notes (as defined in
the Securities Purchase Agreement) purchased by the Holder at such Additional Closing, divided by (y) the applicable Additional
Share Price.
(d) “Additional
Share Price” means, with respect to any Additional Closing that price which shall be the lower of (i) $15.00 (as adjusted
for share splits, share combinations, share dividends, recapitalizations and similar events), (ii) the quotient of (I) the sum
of the five (5) VWAPs of the Ordinary Shares during the five (5) consecutive Trading Day period ending and including the Trading
Day immediately preceding such applicable Additional Closing Date (as defined in the Securities Purchase Agreement), divided by (II) five
(5), and (iii) the quotient of (I) the sum of the five (5) VWAPs of the Ordinary Shares during the five (5) consecutive
Trading Day period ending and including the Trading Day immediately preceding the Additional Optional Closing Notice Date (as
defined in the Securities Purchase Agreement), divided by (II) five (5) (each such period in clause (ii) and clause (iii), the
“Additional Share Measuring Period”). All such determinations to be appropriately adjusted for any share dividend,
share split, share combination, reclassification or similar transaction that proportionately decreases or increases the Ordinary Shares
during such Additional Share Measuring Period.
(e) “Additional
Redemption Share Amount” means, with respect to any given Company Optional Redemption (as defined in the Notes), such aggregate
number of Ordinary Shares equal to 16% of the quotient of (x) the aggregate Company Optional Redemption Price (as defined in the
Notes) applicable to the Notes of the Holder subject to such applicable Company Optional Redemption, divided by (y) the applicable
Additional Redemption Share Price.
(f) “Additional
Redemption Share Price” means, with respect to any given Company Optional Redemption, that price which shall be the lower of
(i) $15.00 (as adjusted for share splits, share combinations, share dividends, recapitalizations and similar events) and (ii) the
quotient of (I) the sum of the five (5) VWAPs of the Ordinary Shares during the five (5) consecutive Trading Day period
ending and including the Trading Day immediately preceding such applicable Company Optional Redemption Date (as defined in the Notes),
divided by (II) five (5) (such period, the “Additional Share Measuring Period”). All such determinations
to be appropriately adjusted for any share dividend, share split, share combination, reclassification or similar transaction that proportionately
decreases or increases the Ordinary Shares during such Additional Share Measuring Period.
(g) “Adjustment
Right” means any right granted with respect to any securities issued in connection with, or with respect to, any issuance or
sale (or deemed issuance or sale in accordance with Section 2) of Ordinary Shares (other than rights of the type described in Section 3
and 4 hereof) that could result in a decrease in the net consideration received by the Company in connection with, or with respect to,
such securities (including, without limitation, any cash settlement rights, cash adjustment or other similar rights).
(h) “Affiliate”
means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by, or is under common control
with, such Person, it being understood for purposes of this definition that “control” of a Person means the power directly
or indirectly either to vote 10% or more of the stock (or, if applicable, shares) having ordinary voting power for the election of directors
of such Person or direct or cause the direction of the management and policies of such Person whether by contract or otherwise.
(i) “Approved
Share Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent
to the date hereof pursuant to which Ordinary Shares and standard options to purchase Ordinary Shares may be issued to any employee,
officer or director for services provided to the Company in their capacity as such.
(j) “Attribution
Parties” means, collectively, the following Persons and entities: (i) any investment vehicle, including, any funds, feeder
funds or managed accounts, currently, or from time to time after the Issuance Date, directly or indirectly managed or advised by the
Holder’s investment manager or any of its Affiliates or principals, (ii) any direct or indirect Affiliates of the Holder or
any of the foregoing, (iii) any Person acting or who could be deemed to be acting as a Group together with the Holder or any of
the foregoing and (iv) any other Persons whose beneficial ownership of the Company’s Ordinary Shares would or could be aggregated
with the Holder’s and the other Attribution Parties for purposes of Section 13(d) of the 1934 Act. For clarity, the purpose
of the foregoing is to subject collectively the Holder and all other Attribution Parties to the Maximum Percentage.
(k) “Bid
Price” means, for any security as of the particular time of determination, the bid price for such security on the Principal
Market as reported by Bloomberg as of such time of determination, or, if the Principal Market is not the principal securities exchange
or trading market for such security, the bid price of such security on the principal securities exchange or trading market where such
security is listed or traded as reported by Bloomberg as of such time of determination, or if the foregoing does not apply, the bid price
of such security in the over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg as of such
time of determination, or, if no bid price is reported for such security by Bloomberg as of such time of determination, the average of
the bid prices of any market makers for such security as reported in The Pink Open Market (or a similar organization or agency succeeding
to its functions of reporting prices) as of such time of determination. If the Bid Price cannot be calculated for a security as of the
particular time of determination on any of the foregoing bases, the Bid Price of such security as of such time of determination shall
be the fair market value as mutually determined by the Company and the Holder. If the Company and the Holder are unable to agree upon
the fair market value of such security, then such dispute shall be resolved in accordance with the procedures in Section 15. All
such determinations shall be appropriately adjusted for any share dividend, share split, share combination or other similar transaction
during such period.
(l) “Black
Scholes Value” means the value of the unexercised portion of this Warrant remaining on the date of the Holder’s request
pursuant to Section 4(c), which value is calculated using the Black Scholes Option Pricing Model obtained from the “OV”
function on Bloomberg utilizing (i) an underlying price per share equal to the greater of (1) the highest Closing Sale Price
of the Ordinary Shares during the period beginning on the Trading Day immediately preceding the announcement of the applicable Change
of Control (or the consummation of the applicable Change of Control, if earlier) and ending on the Trading Day of the Holder’s request
pursuant to Section 4(c) and (2) the sum of the price per share being offered in cash in the applicable Change of Control
(if any) plus the value of the non-cash consideration being offered in the applicable Change of Control (if any), (ii) a strike price
equal to the Exercise Price in effect on the date of the Holder’s request pursuant to Section 4(c), (iii) a risk-free
interest rate corresponding to the U.S. Treasury rate for a period equal to the greater of (1) the remaining term of this Warrant
as of the date of the Holder’s request pursuant to Section 4(c) and (2) the remaining term of this Warrant as of
the date of consummation of the applicable Change of Control or as of the date of the Holder’s request pursuant to Section 4(c) if
such request is prior to the date of the consummation of the applicable Change of Control, (iv) a zero cost of borrow and (v) an
expected volatility equal to the greater of 100% and the 30 day volatility obtained from the “HVT” function on Bloomberg (determined
utilizing a 365 day annualization factor) as of the Trading Day immediately following the earliest to occur of (A) the public disclosure
of the applicable Change of Control and (B) the date of the Holder’s request pursuant to Section 4(c).
(m) “Bloomberg”
means Bloomberg, L.P.
(n) “Business
Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, for clarification, commercial
banks shall not be deemed to be authorized or required by law to remain closed due to “stay at home”, “shelter-in-place”,
“non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the
direction of any governmental authority so long as the electronic funds transfer systems (including for wire transfers) of commercial
banks in The City of New York generally are open for use by customers on such day.
(o) “Change
of Control” means any Fundamental Transaction other than (i) any merger of the Company or any of its, direct or indirect,
wholly-owned Subsidiaries with or into any of the foregoing Persons, (ii) any reorganization, recapitalization or reclassification
of the Ordinary Shares in which holders of the Company’s voting power immediately prior to such reorganization, recapitalization
or reclassification continue after such reorganization, recapitalization or reclassification to hold publicly traded securities and,
directly or indirectly, are, in all material respects, the holders of the voting power of the surviving entity (or entities with the
authority or voting power to elect the members of the board of directors (or their equivalent if other than a corporation) of such
entity or entities) after such reorganization, recapitalization or reclassification, or (iii) pursuant to a migratory merger effected
solely for the purpose of changing the jurisdiction of incorporation of the Company or any of its Subsidiaries.
(p) “Closing
Sale Price” means, for any security as of any date, the last closing trade price for such security on the Principal Market,
as reported by Bloomberg, or, if the Principal Market begins to operate on an extended hours basis and does not designate the closing
trade price, then the last trade price of such security prior to 4:00:00 p.m., New York time, as reported by Bloomberg, or, if the Principal
Market is not the principal securities exchange or trading market for such security, the last trade price of such security on the principal
securities exchange or trading market where such security is listed or traded as reported by Bloomberg, or if the foregoing does not
apply, the last trade price of such security in the over-the-counter market on the electronic bulletin board for such security as reported
by Bloomberg, or, if no last trade price is reported for such security by Bloomberg, the average of the ask prices of any market makers
for such security as reported in The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices).
If the Closing Sale Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Closing Sale Price
of such security on such date shall be the fair market value as mutually determined by the Company and the Holder. If the Company and
the Holder are unable to agree upon the fair market value of such security, then such dispute shall be resolved in accordance with the
procedures in Section 15. All such determinations shall be appropriately adjusted for any share dividend, share split, share combination
or other similar transaction during such period.
(q) “Ordinary
Shares” means (i) the Company’s Ordinary Shares, $0.30 par value per share, and (ii) any share capital into
which such Ordinary Shares shall have been changed or any share capital resulting from a reclassification of such Ordinary Shares.
(r) “Convertible
Securities” means any share or other security (other than Options) that is at any time and under any circumstances, directly
or indirectly, convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any Ordinary
Shares.
(s) “Eligible
Market” means The New York Stock Exchange, the NYSE American, the Nasdaq Global Select Market, the Nasdaq Global Market or
the Principal Market.
(t) “Event
Market Price” means, with respect to any Share Combination Event Date, the quotient determined by dividing (x) the sum
of the VWAP of the Ordinary Shares for each of the five (5) lowest Trading Days during the twenty (20) consecutive Trading Day period
ending and including the Trading Day immediately preceding the sixteenth (16th) Trading Day after such Share Combination Event Date,
divided by (y) five (5). All such determinations shall be appropriately adjusted for any share dividend, share split, share combination,
recapitalization or other similar transaction during such period.
(u) “Excluded
Securities” means (i) Ordinary Shares or standard options to purchase Ordinary Shares issued to directors, officers or
employees of the Company for services rendered to the Company in their capacity as such pursuant to an Approved Share Plan (as defined
above) or such agreements with such directors, officers or employees of the Company existing as of the date of this Agreement, provided
that (A) all such issuances (taking into account the Ordinary Shares issuable upon exercise of such options) after the Subscription
Date pursuant to this clause (i) do not, in the aggregate, exceed more than 5% of the Ordinary Shares issued and outstanding immediately
prior to the Subscription Date and (B) the exercise price of any such options is not lowered, none of such options are amended to
increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed
in any manner that adversely affects any of the Buyers; (ii) Ordinary Shares issued upon the conversion or exercise of Convertible
Securities (other than standard options to purchase Ordinary Shares issued pursuant to an Approved Share Plan or such agreements with
such directors, officers or employees of the Company existing as of the date of this Agreement that are covered by clause (i) above)
issued prior to the Subscription Date, provided that the conversion price of any such Convertible Securities (other than standard options
to purchase Ordinary Shares issued pursuant to an Approved Share Plan or such agreements with such directors, officers or employees of
the Company existing as of the date of this Agreement that are covered by clause (i) above) is not lowered, none of such Convertible
Securities (other than standard options to purchase Ordinary Shares issued pursuant to an Approved Share Plan or such agreements with
such directors, officers or employees of the Company existing as of the date of this Agreement that are covered by clause (i) above)
are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities
(other than standard options to purchase Ordinary Shares issued pursuant to an Approved Share Plan or such agreements with such directors,
officers or employees of the Company existing as of the date of this Agreement that are covered by clause (i) above) are otherwise
materially changed in any manner that adversely affects any of the Buyers; (iii) the Ordinary Shares issuable upon conversion of
the Notes or otherwise pursuant to the terms of the Notes; provided, that the terms of the Notes are not amended, modified or changed
on or after the Subscription Date (other than antidilution adjustments pursuant to the terms thereof in effect as of the Subscription
Date), (iv) the Ordinary Shares issuable upon exercise of the SPA Warrants; provided, that the terms of the SPA Warrant are not
amended, modified or changed on or after the Subscription Date (other than antidilution adjustments pursuant to the terms thereof in
effect as of the Subscription Date), (v) securities issued in connection with any bona fide strategic or commercial alliances, acquisitions,
mergers, licensing arrangements, strategic transactions and strategic partnerships (including, without limitation, joint ventures, marketing
or distribution arrangements, collaboration agreements or intellectual property license agreements) approved by a majority of the disinterested
directors of the Company, provided that such securities are issued as “restricted securities” (as defined in Rule 144)
and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the Restricted
Period (as defined in the Securities Purchase Agreement), provided, further, that (w) the primary purpose of such issuance is not
to raise capital as reasonably determined by a majority of the disinterested directors of the Company, and (x) the purchaser or
acquirer or recipient of the securities in such issuance solely consists of either (I) the actual participants in such strategic
or commercial alliance, strategic or commercial licensing arrangement or strategic or commercial partnership, (II) the actual owners
of such assets or securities acquired in such acquisition or merger or (III) the stockholders, partners, employees, consultants,
officers, directors or members of the foregoing Persons, in each case, which is, itself or through its subsidiaries, an operating company
or an owner of an asset, in a business synergistic with the business of the Company and shall provide to the Company additional benefits
in addition to the investment of funds, (y) the number or amount of securities issued to such Persons by the Company shall not be
disproportionate to each such Person’s actual participation in (or fair market value of the contribution to) such strategic or
commercial alliance or strategic or commercial partnership or ownership of such assets or securities to be acquired by the Company, as
applicable and (z) the aggregate number of Ordinary Shares issued (or issuable upon conversion or exercise of Convertible Securities
or Options, as applicable) pursuant to this clause (v), in the aggregate, shall not exceed thirty percent (30%) of the total number of
outstanding Ordinary Shares immediately following the issuance and sale of the Securities pursuant hereto, and (vi) the issuance
by the Company of 2,812,833 Ordinary Shares pursuant to securities purchase agreements entered into with investors on November 7,
2023 and November 9, 2023, respectively, for gross proceeds of $3,994,222, in reliance upon an exemption from the registration requirements
of the Section 5 of the 1933 Act.
(v) “Expiration
Date” means the date that is the tenth (10th) anniversary of the Initial Exercisability Date or, if such date falls
on a day other than a Trading Day or on which trading does not take place on the Principal Market (a “Holiday”), the
next date that is not a Holiday.
(w) “Fundamental
Transaction” means (A) that the Company shall, directly or indirectly, including through subsidiaries, Affiliates or otherwise,
in one or more related transactions, (i) consolidate or merge with or into (whether or not the Company is the surviving corporation)
another Subject Entity, or (ii) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties
or assets of the Company or any of its “significant subsidiaries” (as defined in Rule 1-02 of Regulation S-X) to one
or more Subject Entities, or (iii) make, or allow one or more Subject Entities to make, or allow the Company to be subject to or
have its Ordinary Shares be subject to or party to one or more Subject Entities making, a purchase, tender or exchange offer that is
accepted by the holders of at least either (x) 50% of the outstanding Ordinary Shares, (y) 50% of the outstanding Ordinary
Shares calculated as if any Ordinary Shares held by all Subject Entities making or party to, or Affiliated with any Subject Entities
making or party to, such purchase, tender or exchange offer were not outstanding; or (z) such number of Ordinary Shares such that
all Subject Entities making or party to, or Affiliated with any Subject Entity making or party to, such purchase, tender or exchange
offer, become collectively the beneficial owners (as defined in Rule 13d-3 under the 1934 Act) of at least 50% of the outstanding
Ordinary Shares, or (iv) consummate a stock or share purchase agreement or other business combination (including, without limitation,
a reorganization, recapitalization, spin-off or scheme of arrangement) with one or more Subject Entities whereby all such Subject Entities,
individually or in the aggregate, acquire, either (x) at least 50% of the outstanding Ordinary Shares, (y) at least 50% of
the outstanding Ordinary Shares calculated as if any Ordinary Shares held by all the Subject Entities making or party to, or Affiliated
with any Subject Entity making or party to, such stock or share purchase agreement or other business combination were not outstanding;
or (z) such number of Ordinary Shares such that the Subject Entities become collectively the beneficial owners (as defined in Rule 13d-3
under the 1934 Act) of at least 50% of the outstanding Ordinary Shares, or (v) reorganize, recapitalize or reclassify its Ordinary
Shares, (B) that the Company shall, directly or indirectly, including through subsidiaries, Affiliates or otherwise, in one or more
related transactions, allow any Subject Entity individually or the Subject Entities in the aggregate to be or become the “beneficial
owner” (as defined in Rule 13d-3 under the 1934 Act), directly or indirectly, whether through acquisition, purchase, assignment,
conveyance, tender, tender offer, exchange, reduction in outstanding Ordinary Shares, merger, consolidation, business combination, reorganization,
recapitalization, spin-off, scheme of arrangement, reorganization, recapitalization or reclassification or otherwise in any manner whatsoever,
of either (x) at least 50% of the aggregate ordinary voting power represented by issued and outstanding Ordinary Shares, (y) at
least 50% of the aggregate ordinary voting power represented by issued and outstanding Ordinary Shares not held by all such Subject Entities
as of the date of this Warrant calculated as if any Ordinary Shares held by all such Subject Entities were not outstanding, or (z) a
percentage of the aggregate ordinary voting power represented by issued and outstanding Ordinary Shares or other equity securities of
the Company sufficient to allow such Subject Entities to effect a statutory short form merger or other transaction requiring other shareholders
of the Company to surrender their Ordinary Shares without approval of the shareholders of the Company or (C) directly or indirectly,
including through subsidiaries, Affiliates or otherwise, in one or more related transactions, the issuance of or the entering into any
other instrument or transaction structured in a manner to circumvent, or that circumvents, the intent of this definition in which case
this definition shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this definition
to the extent necessary to correct this definition or any portion of this definition which may be defective or inconsistent with the
intended treatment of such instrument or transaction.
(x) “Group”
means a “group” as that term is used in Section 13(d) of the 1934 Act and as defined in Rule 13d-5 thereunder.
(y) “Maximum
Eligibility Number” means, as of any time of determination, the Warrant Number then in effect (subject to adjustment in accordance
with Section 2 above and pursuant to this definition), but shall automatically increase on (x) each Additional Closing Date,
by such aggregate number of Ordinary Shares equal to the Additional Share Amount and (y) on each Company Optional Redemption Date
(as defined in the Notes) by the Additional Redemption Share Amount.
(z) “Notes”
has the meaning ascribed to such term in the Securities Purchase Agreement, and shall include all notes issued in exchange therefor or
replacement thereof.
(aa) “Options”
means any rights, warrants or options to subscribe for or purchase Ordinary Shares or Convertible Securities.
(bb) “Parent
Entity” of a Person means an entity that, directly or indirectly, controls the applicable Person and whose Ordinary Shares or
equivalent equity security is quoted or listed on an Eligible Market, or, if there is more than one such Person or Parent Entity, the
Person or Parent Entity with the largest public market capitalization as of the date of consummation of the Fundamental Transaction.
(cc) “Person”
means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization,
any other entity or a government or any department or agency thereof.
(dd) “Principal
Market” means the Nasdaq Capital Market.
(ee) “Registration
Rights Agreement” means that certain registration rights agreement, dated as of the Closing Date, by and among the Company and
the initial holders of the Notes relating to, among other things, the registration of the resale of the Ordinary Shares issuable upon
conversion of the Notes or otherwise pursuant to the terms of the Notes and exercise of the SPA Warrants, as may be amended from time
to time.
(ff) “SEC”
means the United States Securities and Exchange Commission or the successor thereto.
(gg) “Subject
Entity” means any Person, Persons or Group or any Affiliate or associate of any such Person, Persons or Group.
(hh) “Successor
Entity” means the Person (or, if so elected by the Holder, the Parent Entity) formed by, resulting from or surviving any Fundamental
Transaction or the Person (or, if so elected by the Holder, the Parent Entity) with which such Fundamental Transaction shall have been
entered into.
(ii) “Trading
Day” means, as applicable, (x) with respect to all price or trading volume determinations relating to the Ordinary Shares,
any day on which the Ordinary Shares is traded on the Principal Market, or, if the Principal Market is not the principal trading market
for the Ordinary Shares, then on the principal securities exchange or securities market on which the Ordinary Shares is then traded,
provided that “Trading Day” shall not include any day on which the Ordinary Shares is scheduled to trade on such exchange
or market for less than 4.5 hours or any day that the Ordinary Shares is suspended from trading during the final hour of trading on such
exchange or market (or if such exchange or market does not designate in advance the closing time of trading on such exchange or market,
then during the hour ending at 4:00:00 p.m., New York time) unless such day is otherwise designated as a Trading Day in writing by the
Holder or (y) with respect to all determinations other than price or trading volume determinations relating to the Ordinary Shares,
any day on which The New York Stock Exchange (or any successor thereto) is open for trading of securities.
(jj) “VWAP”
means, for any security as of any date, the dollar volume-weighted average price for such security on the Principal Market (or, if the
Principal Market is not the principal trading market for such security, then on the principal securities exchange or securities market
on which such security is then traded), during the period beginning at 9:30 a.m., New York time, and ending at 4:00 p.m., New York time,
as reported by Bloomberg through its “VAP” function (set to 09:30 start time and 16:00 end time) or, if the foregoing does
not apply, the dollar volume-weighted average price of such security in the over-the-counter market on the electronic bulletin board for
such security during the period beginning at 9:30 a.m., New York time, and ending at 4:00 p.m., New York time, as reported by Bloomberg,
or, if no dollar volume-weighted average price is reported for such security by Bloomberg for such hours, the average of the highest closing
bid price and the lowest closing ask price of any of the market makers for such security as reported in The Pink Open Market (or a similar
organization or agency succeeding to its functions of reporting prices). If the VWAP cannot be calculated for such security on such date
on any of the foregoing bases, the VWAP of such security on such date shall be the fair market value as mutually determined by the Company
and the Holder. If the Company and the Holder are unable to agree upon the fair market value of such security, then such dispute shall
be resolved in accordance with the procedures in Section 15. All such determinations shall be appropriately adjusted for any share
dividend, share split, share combination, recapitalization or other similar transaction during such period.
[signature page follows]
IN WITNESS WHEREOF,
the Company has caused this Warrant to Purchase Ordinary Shares to be duly executed as of the Issuance Date set out above.
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EXHIBIT A
EXERCISE
NOTICE
TO BE
EXECUTED BY THE REGISTERED HOLDER TO EXERCISE THIS
WARRANT TO PURCHASE ORDINARY SHARES
BIT ORIGIN LTD
The undersigned holder hereby
elects to exercise the Warrant to Purchase Ordinary Shares No. _______ (the “Warrant”) of Bit Origin Ltd, an exempted
company incorporated under the laws of the Cayman Islands (the “Company”) as specified below. Capitalized terms used
herein and not otherwise defined shall have the respective meanings set forth in the Warrant.
1. Form of
Exercise Price. The Holder intends that payment of the Aggregate Exercise Price shall be made as:
| ¨ | a “Cash Exercise” with respect to _________________ Warrant Shares; and/or |
| ¨ | a “Cashless Exercise” with respect to _______________ Warrant Shares. |
| ¨ | an “Alternate Cashless Exercise” with respect to _______________ Warrant Shares. |
In the event that the Holder
has elected a Cashless Exercise with respect to some or all of the Warrant Shares to be issued pursuant hereto, the Holder hereby represents
and warrants that (i) this Exercise Notice was executed by the Holder at __________ [a.m.][p.m.] on the date set forth below and
(ii) if applicable, the Bid Price as of such time of execution of this Exercise Notice was $________.
In the event that the Holder
has elected an Alternate Cashless Exercise with respect to some or all of the Warrant Shares to be issued pursuant hereto, the Holder
hereby represents and warrants that the applicable Alternate Cashless Exercise Amount is ________ Ordinary Shares.
2. Payment
of Exercise Price. In the event that the Holder has elected a Cash Exercise with respect to some or all of the Warrant Shares to be
issued pursuant hereto, the Holder shall pay the Aggregate Exercise Price in the sum of $___________________ to the Company in accordance
with the terms of the Warrant.
3. Delivery
of Warrant Shares. The Company shall deliver to Holder, or its designee or agent as specified below, __________ Ordinary Shares in
accordance with the terms of the Warrant. Delivery shall be made to Holder, or for its benefit, as follows:
Check here if requesting delivery
as a certificate to the following name and to the following address:
Check here if requesting delivery by Deposit/Withdrawal at
Custodian as follows:
| DTC Participant: |
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EXHIBIT B
ACKNOWLEDGMENT
The Company hereby acknowledges
this Exercise Notice and hereby directs ______________ to issue the above indicated number of Ordinary Shares in accordance with the Transfer
Agent Instructions dated _________, 202_, from the Company and acknowledged and agreed to by _______________.
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Origin Ltd |
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Title: |
Exhibit 10.1
EXECUTION
VERSION
SECURITIES
PURCHASE AGREEMENT
This
SECURITIES PURCHASE AGREEMENT (the “Agreement”), dated as of December __, 2023, is by and among Bit Origin
Ltd, an exempted company incorporated under the laws of the Cayman Islands with offices located at 27F, Samsung Hub, 3 Church Street,
Singapore 049483 (the “Company”), and each of the investors listed on the Schedule of Buyers attached hereto (individually,
a “Buyer” and collectively, the “Buyers”).
RECITALS
A. The
Company and each Buyer is executing and delivering this Agreement in reliance upon the exemption from securities registration afforded
by Section 4(a)(2) of the Securities Act of 1933, as amended (the “1933 Act”), and Rule 506(b) of
Regulation D (“Regulation D”) as promulgated by the United States Securities and Exchange Commission (the “SEC”)
under the 1933 Act.
B. The
Company has authorized a new series of senior secured convertible notes of the Company, in the aggregate original principal amount of
$24,740,000, substantially in the form attached hereto as Exhibit A (the “Notes”), which Notes
shall be convertible into Ordinary Shares (as defined below) (the Ordinary Shares issuable pursuant to the terms of the Notes, including,
without limitation, upon conversion or otherwise, collectively, the “Conversion Shares”), in accordance with the terms
of the Notes.
C. Each
Buyer wishes to purchase, and the Company wishes to sell at the Initial Closing (as defined below), upon the terms and conditions stated
in this Agreement, (a) a Note in the aggregate original principal amount set forth opposite such Buyer’s name in column (3) on
the Schedule of Buyers (which aggregate principal amount for all Buyers shall not exceed $6,740,000)(each, an “Initial Note”,
and collectively, the “Initial Notes”)(the Conversion Shares issuable pursuant to the terms of the Initial Notes,
including, without limitation, upon conversion or otherwise, collectively, the “Initial Conversion Shares”) and (b) a
warrant to initially acquire up to that aggregate number of additional Ordinary Shares set forth opposite such Buyer’s name in
column (5) on the Schedule of Buyers, substantially in the form attached hereto as Exhibit B (each a “Warrant”
and, collectively, the “Warrants”) (the Ordinary Shares issuable upon exercise of the Warrants, collectively, the
“Warrant Shares”).
D. Subject
to the terms and conditions set forth in this Agreement, each Buyer, severally, may require the Company to participate in one or more
Additional Closings (as defined below) for the purchase by such Buyer, and the sale by the Company, of one or more Additional Notes (as
defined below) with an aggregate original principal amount for all Additional Closings not to exceed the maximum aggregate principal
amount set forth opposite such Buyer’s name in column (4) on the Schedule of Buyers (which aggregate principal amount for
all Buyers for all Additional Closings shall not exceed $18,000,000)(each an “Additional Note”, and collectively,
the “Additional Notes”)(the Conversion Shares issuable pursuant to the terms of the Additional Notes, including, without
limitation, upon conversion or otherwise, collectively, the “Additional Conversion Shares”).
E. At
the Initial Closing, the parties hereto shall execute and deliver a Registration Rights Agreement, in the form attached hereto as Exhibit C
(the “Registration Rights Agreement”), pursuant to which the Company has agreed to provide certain registration
rights with respect to the Registrable Securities (as defined in the Registration Rights Agreement), under the 1933 Act and the rules and
regulations promulgated thereunder, and applicable state securities laws.
F. On
or prior to the date hereof, the parties hereto shall have executed and delivered an Equity Purchase Agreement, pursuant to which the
Company has agreed to purchase from [ ] (the “[ ] Member”) seventy-five (75%) of the membership interests of Sonic
Auspice DC LLC, a Delaware limited liability company (the “New LLC”).
G. The
Notes, the Conversion Shares, the Warrants and the Warrant Shares are collectively referred to herein as the “Securities.”
H. The
Notes will rank senior to all outstanding and future indebtedness of the Company, and its Subsidiaries (as defined below) other than
Permitted Indebtedness (as defined in the Notes) secured by Permitted Liens (as defined in the Notes) and will be secured by a first
priority perfected security interest in all of the existing and future assets of the Company and its direct and indirect Subsidiaries,
including a pledge of all of the share capital of each of the Subsidiaries, as evidenced by (i) a security agreement in the form
attached hereto as Exhibit D (the “Security Agreement”, and together with the Perfection Certificate
(as defined below) and the other security documents and agreements entered into in connection with this Agreement and each of such other
documents and agreements, as each may be amended or modified from time to time, collectively, the “Security Documents”),
and (ii) guaranty executed by each Subsidiary of the Company and the New LLC, which shall pledge 55% of its membership interests
as collateral (each, a “Guarantor”), in the form attached hereto as Exhibit E (collectively, the
“Guaranties”) pursuant to which each of them guarantees the obligations of the Company under the Transaction Documents
(as defined below).
AGREEMENT
NOW,
THEREFORE, in consideration of the premises and the mutual covenants contained herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Company and each Buyer hereby agree as follows:
1. PURCHASE
AND SALE OF NOTES AND WARRANTS.
(a) Purchase
of Notes and Warrants .
(i) Initial
Closing. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(a) and 7(a) below, the Company
shall issue and sell to each Buyer, and each Buyer severally, but not jointly, shall purchase from the Company on the Initial Closing
Date (as defined below), (A) an Initial Note in the original principal amount as is set forth opposite such Buyer’s name in
column (3) on the Schedule of Buyers and (B) Warrants to initially acquire up to that aggregate number of Warrant Shares as
is set forth opposite such Buyer’s name in column (5) on the Schedule of Buyers (the “Initial Closing”).
(ii) Additional
Closing. Subject to the satisfaction (or waiver) of the conditions set forth in Section 1(b)(ii), 6(b) and 7(b) below,
if a Buyer has delivered an Additional Optional Closing Notice (as defined below) to the Company, the Company shall issue and sell to
such Buyer, and such Buyer severally, but not jointly, with any other Buyer, shall purchase from the Company, on the applicable Additional
Closing Date (as defined below), an Additional Note in the original principal amount as is set forth opposite such Buyer’s name
in column (4) on the Schedule of Buyers (each, an “Additional Closing”).
(b) Closing.
The Initial Closing and each Additional Closing are each referred to in this Agreement as a “Closing”. Each Closing
shall occur at the offices of Kelley Drye & Warren LLP, 3 World Trade Center, 175 Greenwich Street, New York, NY 10007.
(i) Initial
Closing. The date and time of the Initial Closing (the “Initial Closing Date”) shall be 10:00 a.m., New York time,
on the first (1st) Business Day (as defined below) (and including the date hereof if a Business Day) on which the conditions to the Initial
Closing set forth in Sections 6(a) and 7(a) below are satisfied or waived (or such other date as is mutually agreed to by the
Company and each Buyer). As used herein “Business Day” means any day other than Saturday, Sunday or other day on which commercial
banks in The City of New York are authorized or required by law to remain closed; provided, however, for clarification, commercial banks
shall not be deemed to be authorized or required by law to remain closed due to “stay at home”, “shelter-in-place”,
“non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the
direction of any governmental authority so long as the electronic funds transfer systems (including for wire transfers) of commercial
banks in The City of New York generally are open for use by customers on such day.
(ii) Additional
Closing. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, each Buyer,
severally, shall have the right, exercisable by delivery by e-mail of a written notice to the Company (the “Additional Optional
Closing Notice”, and the date hereof, the “Additional Optional Closing Notice Date”) to purchase, and to
require the Company to sell to such Buyer, at one or more Additional Closings, up to such maximum aggregate principal amount of Additional
Notes as set forth opposite its name in column (4) on the Schedule of Buyers (each, an “Additional Optional Notes Amount”).
Each Additional Optional Closing Notice shall specify (x) the proposed date and time of the applicable Additional Closing (which,
if unspecified in such Additional Optional Closing Notice, shall be the second (2nd) Trading Day after such Additional Optional Closing
Notice or such other date as is mutually agreed to by the Company and each Buyer, each, an “Additional Optional Closing Date,”)
and (y) the applicable Additional Optional Notes Amount of the Additional Note to be issued to such Buyer at such Additional Closing,
which amount shall be not less than $18,000,000. The Buyers’ rights to effect any further Additional Closings hereunder shall terminate
upon the second anniversary of the Applicable Date (as defined below) (or such earlier date as the Required Holders shall notify the
Company) (the “Additional Optional Closing Expiration Date”), at such time such Buyer shall have no further right
to require any further Additional Closings hereunder.
(c) Purchase
Price. The aggregate purchase price for the Initial Notes and Warrants to be purchased by each Buyer (the “Initial Purchase
Price”) shall be the amount set forth opposite such Buyer’s name in column (6) on the Schedule of Buyers. The aggregate
purchase price for the Additional Notes to be purchased by each Buyer at any given Additional Closing (each, an “Additional
Purchase Price”, and together with the Initial Purchase Price, each, a “Purchase Price”) shall be the aggregate
amount set forth opposite such Buyer’s name in column (7) on the Schedule of Buyers. Each Buyer shall pay the Purchase Price
of approximately $909.1 for each $1,000 of aggregate principal amount of the Initial Notes and Warrants to be purchased by each Buyer
at the Initial Closing, and the Additional Notes to be purchased by each Buyer at any given Additional Closing. Each Buyer and the Company
agree that the Initial Notes and the Warrants constitute an “investment unit” for purposes of Section 1273(c)(2) of
the Internal Revenue Code of 1986, as amended (the “Code”). The Buyers and the Company mutually agree that the allocation
of the issue price of such investment unit between the Initial Notes and the Warrants in accordance with Section 1273(c)(2) of
the Code and Treasury Regulation Section 1.1273-2(h) shall be an aggregate amount as mutually agreed by the Company and the
Required Holders, and neither the Buyers nor the Company shall take any position inconsistent with such allocation in any tax return
or in any judicial or administrative proceeding in respect of taxes.
(d) Form of
Payment.
(i) On
the Initial Closing Date, (A) each Buyer shall pay its respective Initial Purchase Price (less, in the case of any Buyer, the amounts
withheld pursuant to Section 4(g)) to the Company for the Initial Notes and the Warrants to be issued and sold to such Buyer at
the Initial Closing, by wire transfer of immediately available funds in accordance with the Initial Flow of Funds Letter (as defined
below) and (B) the Company shall deliver to each Buyer (x) an Initial Note in the aggregate original principal amount as is
set forth opposite such Buyer’s name in column (3) of the Schedule of Buyers and (y) Warrant pursuant to which such Buyer
shall have the right to initially acquire up to such aggregate number of Warrant Shares as is set forth opposite such Buyer’s name
in column (5) of the Schedule of Buyers, in each case, duly executed on behalf of the Company and registered in the name of such
Buyer or its designee.
(ii) On
the applicable Additional Closing Date, (A) each Buyer participating in such Additional Closing shall pay its respective Additional
Purchase Price (less, in the case of any Buyer, the amounts withheld pursuant to Section 4(g)) to the Company for the Additional
Notes to be issued and sold to such Buyer at such Additional Closing, by wire transfer of immediately available funds in accordance with
the Company’s written wire instructions and (B) the Company shall deliver to each such applicable Buyer an Additional Note
in the aggregate original principal amount as is set forth opposite such Buyer’s name in column (4) of the Schedule of Buyers,
duly executed on behalf of the Company and registered in the name of such Buyer or its designee.
(e) Rank.
Each party hereto acknowledges that the Initial Notes and the Additional Notes shall be part of a single series of notes and shall rank
pari passu with each other.
2. BUYER’S
REPRESENTATIONS AND WARRANTIES.
Each
Buyer, severally and not jointly, represents and warrants to the Company with respect to only itself that, as of the date hereof and
as of each Closing Date in which such Buyer purchases any Notes and Warrants hereunder:
(a) Organization;
Authority. Such Buyer is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its
organization with the requisite power and authority to enter into and to consummate the transactions contemplated by the Transaction
Documents (as defined below) to which it is a party and otherwise to carry out its obligations hereunder and thereunder.
(b) No
Public Sale or Distribution. Such Buyer (i) is acquiring its Notes and Warrants, (ii) upon conversion of its Notes will
acquire the Conversion Shares issuable upon conversion thereof, and (iii) upon exercise of its Warrants (other than pursuant to
a Cashless Exercise (as defined in the Warrants)) will acquire the Warrant Shares issuable upon exercise thereof, in each case, for its
own account and not with a view towards, or for resale in connection with, the public sale or distribution thereof in violation of applicable
securities laws, except pursuant to sales registered or exempted under the 1933 Act; provided, however, by making the representations
herein, such Buyer does not agree, or make any representation or warranty, to hold any of the Securities for any minimum or other specific
term and reserves the right to dispose of the Securities at any time in accordance with or pursuant to a registration statement or an
exemption from registration under the 1933 Act. Such Buyer does not presently have any agreement or understanding, directly or indirectly,
with any Person to distribute any of the Securities in violation of applicable securities laws. For purposes of this Agreement, “Person”
means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization,
any other entity and any Governmental Entity (as defined below) or any department or agency thereof.
(c) Accredited
Investor Status. Such Buyer is an “accredited investor” as that term is defined in Rule 501(a) of Regulation
D.
(d) Reliance
on Exemptions. Such Buyer understands that the Securities are being offered and sold to it in reliance on specific exemptions from
the registration requirements of United States federal and state securities laws and that the Company is relying in part upon the truth
and accuracy of, and such Buyer’s compliance with, the representations, warranties, agreements, acknowledgments and understandings
of such Buyer set forth herein in order to determine the availability of such exemptions and the eligibility of such Buyer to acquire
the Securities.
(e) Information.
Such Buyer and its advisors, if any, have been furnished with all materials relating to the business, finances and operations of the
Company and materials relating to the offer and sale of the Securities that have been requested by such Buyer. Such Buyer and its advisors,
if any, have been afforded the opportunity to ask questions of the Company. Neither such inquiries nor any other due diligence investigations
conducted by such Buyer or its advisors, if any, or its representatives shall modify, amend or affect such Buyer’s right to rely
on the Company’s representations and warranties contained herein. Such Buyer understands that its investment in the Securities
involves a high degree of risk. Such Buyer has sought such accounting, legal and tax advice as it has considered necessary to make an
informed investment decision with respect to its acquisition of the Securities.
(f) No
Governmental Review. Such Buyer understands that no United States federal or state agency or any other government or governmental
agency has passed on or made any recommendation or endorsement of the Securities or the fairness or suitability of the investment in
the Securities nor have such authorities passed upon or endorsed the merits of the offering of the Securities.
(g) Transfer
or Resale. Such Buyer understands that except as provided in the Registration Rights Agreement and Section 4(h) hereof:
(i) the Securities have not been and are not being registered under the 1933 Act or any state securities laws, and may not be offered
for sale, sold, assigned or transferred unless (A) subsequently registered thereunder, (B) such Buyer shall have delivered
to the Company (if requested by the Company) an opinion of counsel, in a form reasonably acceptable to the Company, to the effect that
such Securities to be sold, assigned or transferred may be sold, assigned or transferred pursuant to an exemption from such registration,
or (C) such Buyer provides the Company with reasonable assurance that such Securities can be sold, assigned or transferred pursuant
to Rule 144 or Rule 144A promulgated under the 1933 Act (or a successor rule thereto) (collectively, “Rule 144”);
(ii) any sale of the Securities made in reliance on Rule 144 may be made only in accordance with the terms of Rule 144,
and further, if Rule 144 is not applicable, any resale of the Securities under circumstances in which the seller (or the Person
through whom the sale is made) may be deemed to be an underwriter (as that term is defined in the 1933 Act) may require compliance with
some other exemption under the 1933 Act or the rules and regulations of the SEC promulgated thereunder; and (iii) neither the
Company nor any other Person is under any obligation to register the Securities under the 1933 Act or any state securities laws or to
comply with the terms and conditions of any exemption thereunder. Notwithstanding the foregoing, the Securities may be pledged in connection
with a bona fide margin account or other loan or financing arrangement secured by the Securities and such pledge of Securities shall
not be deemed to be a transfer, sale or assignment of the Securities hereunder, and no Buyer effecting a pledge of Securities shall be
required to provide the Company with any notice thereof or otherwise make any delivery to the Company pursuant to this Agreement or any
other Transaction Document (as defined in Section 3(b)), including, without limitation, this Section 2(g).
(h) Validity;
Enforcement. This Agreement and the Registration Rights Agreement have been duly and validly authorized, executed and delivered on
behalf of such Buyer and shall constitute the legal, valid and binding obligations of such Buyer enforceable against such Buyer in accordance
with their respective terms, except as such enforceability may be limited by general principles of equity or to applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation and other similar laws relating to, or affecting generally, the enforcement of applicable
creditors’ rights and remedies.
(i) No
Conflicts. The execution, delivery and performance by such Buyer of this Agreement and the Registration Rights Agreement and the
consummation by such Buyer of the transactions contemplated hereby and thereby will not (i) result in a violation of the organizational
documents of such Buyer, or (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement,
indenture or instrument to which such Buyer is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment
or decree (including federal and state securities laws) applicable to such Buyer, except in the case of clauses (ii) and (iii) above,
for such conflicts, defaults, rights or violations which could not, individually or in the aggregate, reasonably be expected to have
a material adverse effect on the ability of such Buyer to perform its obligations hereunder.
(j) Residency.
Such Buyer is a resident of that jurisdiction specified below its address on the Schedule of Buyers.
(k) Sufficiency
of Funds. Such Buyer has sufficient cash on hand or other sources of immediately available funds to enable it to make payment of
the Purchase Price and consummate the transactions contemplated by this Agreement.
(l) Solvency.
Immediately after giving effect to the transactions contemplated hereby, such Buyer shall be solvent and shall: (a) be able to pay
its debts as they become due; (b) own property that has a fair saleable value greater than the amounts required to pay its debts
(including a reasonable estimate of the amount of all contingent liabilities); and (c) have adequate capital to carry on its business.
No transfer of property is being made and no obligation is being incurred in connection with the transactions contemplated hereby with
the intent to hinder, delay or defraud either present or future creditors of Buyer or Seller. In connection with the transactions contemplated
hereby, such Buyer has not incurred, nor plans to incur, debts beyond its ability to pay as they become absolute and matured.
(m) Legal
Proceedings. There are no actions, suits, claims, investigations or other legal proceedings pending or threatened against or by such
Buyer or any affiliate of such Buyer that challenge or seek to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement.
3. REPRESENTATIONS
AND WARRANTIES OF THE COMPANY.
The
Company represents and warrants to each of the Buyers that, as of the date hereof and as of each Closing Date:
(a) Organization
and Qualification. Each of the Company and each of its Subsidiaries are entities duly organized or incorporated, as applicable, and
validly existing and in good standing under the laws of the jurisdiction in which they are formed, and have the requisite power and authority
to own their properties and to carry on their business as now being conducted and as presently proposed to be conducted. Each of the
Company and each of its Subsidiaries is duly qualified as a foreign entity to do business and is in good standing in every jurisdiction
in which its ownership of property or the nature of the business conducted by it makes such qualification necessary, except to the extent
that the failure to be so qualified or be in good standing would not reasonably be expected to have a Material Adverse Effect (as defined
below). As used in this Agreement, “Material Adverse Effect” means any material adverse effect on (i) the business,
properties, assets, liabilities, operations (including results thereof), condition (financial or otherwise) or prospects of the Company
or any Subsidiary (as defined below), individually or taken as a whole, (ii) the transactions contemplated hereby or in any of the
other Transaction Documents or any other agreements or instruments to be entered into in connection herewith or therewith or (iii) the
authority or ability of the Company or any of its Subsidiaries to perform any of their respective obligations under any of the Transaction
Documents (as defined below). Except as disclosed in the SEC Documents (as defined below), the Company has no other Subsidiaries. “Subsidiaries”
means any Person in which the Company, directly or indirectly, (I) owns any of the outstanding share capital or holds any equity
or similar interest of such Person or (II) controls or operates all or any part of the business, operations or administration of
such Person, and each of the foregoing, is individually referred to herein as a “Subsidiary.”
(b) Authorization;
Enforcement; Validity. The Company has the requisite power and authority to enter into and perform its obligations under this Agreement
and the other Transaction Documents and to issue the Securities in accordance with the terms hereof and thereof. Each Subsidiary has
the requisite power and authority to enter into and perform its obligations under the Transaction Documents to which it is a party. The
execution and delivery of this Agreement and the other Transaction Documents by the Company and its Subsidiaries, and the consummation
by the Company and its Subsidiaries of the transactions contemplated hereby and thereby (including, without limitation, the issuance
of the Notes and the reservation for issuance and issuance of the Conversion Shares issuable upon conversion of the Notes and the issuance
of the Warrants and the reservation for issuance and issuance of the Warrant Shares issuable upon exercise of the Warrants) have been
duly authorized by the Company’s board of directors and each of its Subsidiaries’ board of directors or other governing body,
as applicable, and (other than the filing with the SEC of one or more Registration Statements in accordance with the requirements of
the Registration Rights Agreement, a Form D with the SEC and any other filings as may be required by any state securities agencies)
no further filing, consent or authorization is required by the Company, its Subsidiaries, their respective boards of directors or their
shareholders or other governing body. This Agreement has been, and the other Transaction Documents to which it is a party will be prior
to the Initial Closing, duly executed and delivered by the Company, and each constitutes the legal, valid and binding obligations of
the Company, enforceable against the Company in accordance with its respective terms, except as such enforceability may be limited by
general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to,
or affecting generally, the enforcement of applicable creditors’ rights and remedies and except as rights to indemnification and
to contribution may be limited by federal or state securities law. Prior to the Initial Closing, the Transaction Documents to which each
Subsidiary is a party will be duly executed and delivered by each such Subsidiary, and shall constitute the legal, valid and binding
obligations of each such Subsidiary, enforceable against each such Subsidiary in accordance with their respective terms, except as such
enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation
or similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies and except as
rights to indemnification and to contribution may be limited by federal or state securities law. “Transaction Documents”
means, collectively, this Agreement, the Notes, the Warrants, the Guaranties, the Security Documents, the Registration Rights Agreement,
and the Irrevocable Transfer Agent Instructions (as defined below) and each of the other agreements and instruments entered into or delivered
by any of the parties hereto in connection with the transactions contemplated hereby and thereby, as may be amended from time to time.
(c) Issuance
of Securities. The issuance of the Notes and the Warrants are duly authorized and upon issuance in accordance with the terms of the
Transaction Documents shall be validly issued, fully paid and non-assessable and free from all preemptive or similar rights, mortgages,
defects, claims, liens, pledges, charges, taxes, rights of first refusal, encumbrances, security interests and other encumbrances (collectively
“Liens”) with respect to the issuance thereof. Within ninety (90) calendar days from and after the date of the Initial
Closing Date, the Company shall reserve not less than of the sum of (i) the maximum number of Conversion Shares issuable upon conversion
of the Notes (assuming for purposes hereof that (w) all Additional Notes issuable hereunder shall have been issued at an Additional
Closing on the Initial Closing Date, (x) the Notes are convertible at the Floor Price (as defined in the Notes), (y) interest
on the Notes shall accrue through the third anniversary of the Initial Closing Date and will be converted in Ordinary Shares at a conversion
price equal to the Floor Price and (z) any such conversion shall not take into account any limitations on the conversion of the
Notes set forth in the Notes), and (ii) 116% of the maximum number of Warrant Shares initially issuable upon exercise of the Warrants
(without taking into account any limitations on the exercise of the Warrants set forth therein), but assuming that all Additional Notes
issuable hereunder shall have been issued at an Additional Closing on the Initial Closing Date (and all adjustments to the Warrants upon
the occurrence of such Additional Closing shall have occurred in accordance with the terms thereof). Upon issuance or conversion in accordance
with the Notes or exercise in accordance with the Warrants (as the case may be), the Conversion Shares and the Warrant Shares, respectively,
when issued, will be validly issued, fully paid and nonassessable and free from all preemptive or similar rights or Liens with respect
to the issue thereof, with the holders being entitled to all rights accorded to a holder of Ordinary Shares. Subject to the accuracy
of the representations and warranties of the Buyers in this Agreement, the offer and issuance by the Company of the Securities is exempt
from registration under the 1933 Act.
(d) No
Conflicts. The execution, delivery and performance of the Transaction Documents by the Company and its Subsidiaries and the consummation
by the Company and its Subsidiaries of the transactions contemplated hereby and thereby (including, without limitation, the issuance
of the Notes, the Warrants, the Conversion Shares and the Warrant Shares and the reservation for issuance of the Conversion Shares and
the Warrant Shares) will not (i) result in a violation of the certificate of incorporation, as may be amended from time to time,
of the Company, the Memorandum and Articles of Association (as defined below), or the certificate of formation, memorandum of association,
articles of association, bylaws or other organizational documents of the Company or any of its Subsidiaries, or any share capital or
other securities of the Company or any of its Subsidiaries, (ii) conflict with, or constitute a default (or an event which with
notice or lapse of time or both would become a default) in any respect under, or give to others any rights of termination, amendment,
acceleration or cancellation of, any agreement, indenture or instrument to which the Company or any of its Subsidiaries is a party, or
(iii) result in a violation of any law, rule, regulation, order, judgment or decree (including, without limitation, foreign, federal
and state securities laws and regulations and the rules and regulations of the Nasdaq Capital Market (the “Principal Market”)
and including all applicable foreign, federal and state laws, rules and regulations, including, without limitation, the laws, rules and
regulations of the Cayman Islands applicable to the Company or any of its Subsidiaries or by which any property or asset of the Company
or any of its Subsidiaries is bound or affected).
(e) Consents.
Neither the Company nor any Subsidiary is required to obtain any consent from, authorization or order of, or make any filing or registration
with (other than the filing with the SEC of one or more Registration Statements in accordance with the requirements of the Registration
Rights Agreement, the filing of a Listing of Additional Shares application with the Principal Market, a Form D with the SEC and
any other filings as may be required by any state securities agencies), any Governmental Entity (as defined below) or any regulatory
or self-regulatory agency or any other Person in order for it to execute, deliver or perform any of its respective obligations under
or contemplated by the Transaction Documents, in each case, in accordance with the terms hereof or thereof. All consents, authorizations,
orders, filings and registrations which the Company or any Subsidiary is required to obtain pursuant to the preceding sentence have been
or will be obtained or effected on or prior to the applicable Closing Date, and neither the Company nor any of its Subsidiaries are aware
of any facts or circumstances which might prevent the Company or any of its Subsidiaries from obtaining or effecting any of the registration,
application or filings contemplated by the Transaction Documents. The Company is not in violation of the requirements of the Principal
Market and has no knowledge of any facts or circumstances which could reasonably lead to delisting or suspension of the Ordinary Shares
in the foreseeable future. “Governmental Entity” means any nation, state, county, city, town, village, district, or
other political jurisdiction of any nature, federal, state, local, municipal, foreign, or other government, governmental or quasi-governmental
authority of any nature (including any governmental agency, branch, department, official, or entity and any court or other tribunal),
multi-national organization or body; or body exercising, or entitled to exercise, any administrative, executive, judicial, legislative,
police, regulatory, or taxing authority or power of any nature or instrumentality of any of the foregoing, including any entity or enterprise
owned or controlled by a government or a public international organization or any of the foregoing.
(f) Acknowledgment
Regarding Buyer’s Purchase of Securities. The Company acknowledges and agrees that each Buyer is acting solely in the capacity
of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated hereby and thereby and
that no Buyer is (i) an officer or director of the Company or any of its Subsidiaries, (ii) an “affiliate” (as
defined in Rule 144) of the Company or any of its Subsidiaries or (iii) to its knowledge, a “beneficial owner”
of more than 10% of the Ordinary Shares (as defined for purposes of Rule 13d-3 of the Securities Exchange Act of 1934, as amended
(the “1934 Act”)). The Company further acknowledges that no Buyer is acting as a financial advisor or fiduciary of
the Company or any of its Subsidiaries (or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated
hereby and thereby, and any advice given by a Buyer or any of its representatives or agents in connection with the Transaction Documents
and the transactions contemplated hereby and thereby is merely incidental to such Buyer’s purchase of the Securities. The Company
further represents to each Buyer that the Company’s and each Subsidiary’s decision to enter into the Transaction Documents
to which it is a party has been based solely on the independent evaluation by the Company, each Subsidiary and their respective representatives.
(g) No
General Solicitation; No Placement Agent. Neither the Company, nor any of its Subsidiaries or affiliates, nor any Person acting on
its or their behalf, has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection
with the offer or sale of the Securities. The Company shall be responsible for the payment of any placement agent’s fees, financial
advisory fees, or brokers’ commissions (other than for Persons engaged by any Buyer or its investment advisor) relating to or arising
out of the transactions contemplated hereby. The Company shall pay, and hold each Buyer harmless against, any liability, loss or expense
(including, without limitation, attorney’s fees and out-of-pocket expenses) arising in connection with any such claim. Neither
the Company nor any of its Subsidiaries has engaged any placement agent or other agent in connection with the offer or sale of the Securities.
(h) No
Integrated Offering. None of the Company, its Subsidiaries or any of their affiliates, nor any Person acting on their behalf has,
directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that
would require registration of the issuance of any of the Securities under the 1933 Act, whether through integration with prior offerings
or otherwise, or caused this offering of the Securities to require approval of shareholders of the Company for purposes of the 1933 Act
or under any applicable shareholder approval provisions, including, without limitation, under the rules and regulations of any exchange
or automated quotation system on which any of the securities of the Company are listed or designated for quotation. None of the Company,
its Subsidiaries, their affiliates nor any Person acting on their behalf will take any action or steps that would require registration
of the issuance of any of the Securities under the 1933 Act (other than pursuant to the Registration Rights Agreement) or cause the offering
of any of the Securities to be integrated with other offerings of securities of the Company.
(i) Dilutive
Effect. The Company understands and acknowledges that the number of Conversion Shares and Warrant Shares will increase in certain
circumstances. The Company further acknowledges that its obligation to issue the Conversion Shares pursuant to the terms of the Notes
in accordance with this Agreement and the Notes and the Warrant Shares upon exercise of the Warrants in accordance with this Agreement,
the Notes and the Warrants is, in each case, absolute and unconditional regardless of the dilutive effect that such issuance may have
on the ownership interests of other shareholders of the Company.
(j) Application
of Takeover Protections; Rights Agreement. The Company and its board of directors have taken all necessary action, if any, in order
to render inapplicable any control share acquisition, interested shareholder, business combination, poison pill (including, without limitation,
any distribution under a rights agreement), shareholder rights plan or other similar anti-takeover provision under the Memorandum and
Articles of Association or the laws of the jurisdiction of its incorporation or otherwise which is or could become applicable to any
Buyer as a result of the transactions contemplated by this Agreement, including, without limitation, the Company’s issuance of
the Securities and any Buyer’s ownership of the Securities. The Company and its board of directors have taken all necessary action,
if any, in order to render inapplicable any shareholder rights plan or similar arrangement relating to accumulations of beneficial ownership
of Ordinary Shares or a change in control of the Company or any of its Subsidiaries.
(k) SEC
Documents; Financial Statements. During the two (2) years prior to the date hereof, the Company has timely filed all reports,
schedules, forms, proxy statements, statements and other documents required to be filed by it with the SEC pursuant to the reporting
requirements of the 1934 Act (all of the foregoing filed prior to the date hereof and all exhibits and appendices included therein and
financial statements, notes and schedules thereto and documents incorporated by reference therein being hereinafter referred to as the
“SEC Documents”). The Company has delivered or has made available to the Buyers or their respective representatives
true, correct and complete copies of each of the SEC Documents not available on the EDGAR system. As of their respective dates, the SEC
Documents complied in all material respects with the requirements of the 1934 Act and the rules and regulations of the SEC promulgated
thereunder applicable to the SEC Documents, and none of the SEC Documents, at the time they were filed with the SEC, contained any untrue
statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading. As of their respective dates, the financial statements
of the Company included in the SEC Documents complied in all material respects with applicable accounting requirements and the published
rules and regulations of the SEC with respect thereto as in effect as of the time of filing. Such financial statements have been
prepared in accordance with generally accepted accounting principles (“GAAP”), consistently applied, during the periods
involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, or (ii) in the case of
unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements) and fairly present
in all material respects the financial position of the Company as of the dates thereof and the results of its operations and cash flows
for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments which will not be material,
either individually or in the aggregate). The reserves, if any, established by the Company or the lack of reserves, if applicable, are
reasonable based upon facts and circumstances known by the Company on the date hereof and there are no loss contingencies that are required
to be accrued by the Statement of Financial Accounting Standard No. 5 of the Financial Accounting Standards Board which are not
provided for by the Company in its financial statements or otherwise. No other information provided by or on behalf of the Company to
any of the Buyers which is not included in the SEC Documents (including, without limitation, information referred to in Section 2(e) of
this Agreement or in the disclosure schedules to this Agreement) contains any untrue statement of a material fact or omits to state any
material fact necessary in order to make the statements therein not misleading, in the light of the circumstance under which they are
or were made. The Company is not currently contemplating to amend or restate any of the financial statements (including, without limitation,
any notes or any letter of the independent accountants of the Company with respect thereto) included in the SEC Documents (the “Financial
Statements”), nor is the Company currently aware of facts or circumstances which would require the Company to amend or restate
any of the Financial Statements, in each case, in order for any of the Financials Statements to be in compliance with GAAP and the rules and
regulations of the SEC. The Company has not been informed by its independent accountants that they recommend that the Company amend or
restate any of the Financial Statements or that there is any need for the Company to amend or restate any of the Financial Statements.
(l) Absence
of Certain Changes. Since the date of the Company’s most recent audited financial statements contained in the SEC Documents,
there has been no material adverse change and no material adverse development in the business, assets, liabilities, properties, operations
(including results thereof), condition (financial or otherwise) or prospects of the Company or any of its Subsidiaries. Since the date
of the Company’s most recent audited financial statements contained in the SEC Documents, neither the Company nor any of its Subsidiaries
has (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, outside of the ordinary course
of business or (iii) made any capital expenditures, individually or in the aggregate, outside of the ordinary course of business.
Neither the Company nor any of its Subsidiaries has taken any steps to seek protection pursuant to any law or statute relating to bankruptcy,
insolvency, reorganization, receivership, liquidation or winding up, nor does the Company or any Subsidiary have any knowledge or reason
to believe that any of their respective creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any
fact which would reasonably lead a creditor to do so. The Company and its Subsidiaries, individually and on a consolidated basis, are
not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Initial Closing, will not
be Insolvent (as defined below). For purposes of this Section 3(l), “Insolvent” means, (i) with respect
to the Company and its Subsidiaries, on a consolidated basis, (A) the present fair saleable value of the Company’s and its
Subsidiaries’ assets is less than the amount required to pay the Company’s and its Subsidiaries’ total Indebtedness
(as defined below), (B) the Company and its Subsidiaries are unable to pay their debts and liabilities, subordinated, contingent
or otherwise, as such debts and liabilities become absolute and matured or (C) the Company and its Subsidiaries intend to incur
or believe that they will incur debts that would be beyond their ability to pay as such debts mature; and (ii) with respect to the
Company and each Subsidiary, individually, (A) the present fair saleable value of the Company’s or such Subsidiary’s
(as the case may be) assets is less than the amount required to pay its respective total Indebtedness, (B) the Company or such Subsidiary
(as the case may be) is unable to pay its respective debts and liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured or (C) the Company or such Subsidiary (as the case may be) intends to incur or believes
that it will incur debts that would be beyond its respective ability to pay as such debts mature. Neither the Company nor any of its
Subsidiaries has engaged in any business or in any transaction, and is not about to engage in any business or in any transaction, for
which the Company’s or such Subsidiary’s remaining assets constitute unreasonably small capital with which to conduct the
business in which it is engaged as such business is now conducted and is proposed to be conducted.
(m) No
Undisclosed Events, Liabilities, Developments or Circumstances. No event, liability, development or circumstance has occurred or
exists, or is reasonably expected to exist or occur with respect to the Company, any of its Subsidiaries or any of their respective businesses,
properties, liabilities, prospects, operations (including results thereof) or condition (financial or otherwise), that (i) would
be required to be disclosed by the Company under applicable securities laws on a registration statement on Form F-1 filed with the
SEC relating to an issuance and sale by the Company of its Ordinary Shares and which has not been publicly announced, (ii) could
have a material adverse effect on any Buyer’s investment hereunder or (iii) could have a Material Adverse Effect.
(n) Conduct
of Business; Regulatory Permits. Neither the Company nor any of its Subsidiaries is in violation of any term of or in default under
its Memorandum and Articles of Association, any certificate of designation, preferences or rights of any other outstanding series of
preferred shares of the Company or any of its Subsidiaries, or its organizational charter, certificate of formation, memorandum of association,
articles of association, certificate of incorporation or bylaws, as applicable. Neither the Company nor any of its Subsidiaries is in
violation of any judgment, decree or order or any statute, ordinance, rule or regulation applicable to the Company or any of its
Subsidiaries, and neither the Company nor any of its Subsidiaries will conduct its business in violation of any of the foregoing, except
in all cases for possible violations which could not, individually or in the aggregate, have a Material Adverse Effect. Without limiting
the generality of the foregoing, the Company is not in violation of any of the rules, regulations or requirements of the Principal Market
and has no knowledge of any facts or circumstances that could reasonably lead to delisting or suspension of the Ordinary Shares by the
Principal Market in the foreseeable future. Except as disclosed in the SEC Documents, during the two years prior to the date hereof,
(i) the Ordinary Shares has been listed or designated for quotation on the Principal Market, (ii) trading in the Ordinary Shares
has not been suspended by the SEC or the Principal Market and (iii) the Company has received no communication, written or oral,
from the SEC or the Principal Market regarding the suspension or delisting of the Ordinary Shares from the Principal Market. The Company
and each of its Subsidiaries possess all certificates, authorizations and permits issued by the appropriate regulatory authorities necessary
to conduct their respective businesses, except where the failure to possess such certificates, authorizations or permits would not have,
individually or in the aggregate, a Material Adverse Effect, and neither the Company nor any such Subsidiary has received any notice
of proceedings relating to the revocation or modification of any such certificate, authorization or permit. There is no agreement, commitment,
judgment, injunction, order or decree binding upon the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries
is a party which has or would reasonably be expected to have the effect of prohibiting or materially impairing any business practice
of the Company or any of its Subsidiaries, any acquisition of property by the Company or any of its Subsidiaries or the conduct of business
by the Company or any of its Subsidiaries as currently conducted other than such effects, individually or in the aggregate, which have
not had and would not reasonably be expected to have a Material Adverse Effect on the Company or any of its Subsidiaries.
(o) Foreign
Corrupt Practices. Neither the Company, the Company’s subsidiary or any director, officer, agent, employee, nor any other person
acting for or on behalf of the foregoing (individually and collectively, a “Company Affiliate”) have violated the
U.S. Foreign Corrupt Practices Act (the “FCPA”) or any other applicable anti-bribery or anti-corruption laws, nor
has any Company Affiliate offered, paid, promised to pay, or authorized the payment of any money, or offered, given, promised to give,
or authorized the giving of anything of value, to any officer, employee or any other person acting in an official capacity for any Governmental
Entity to any political party or official thereof or to any candidate for political office (individually and collectively, a “Government
Official”) or to any person under circumstances where such Company Affiliate knew or was aware of a high probability that all
or a portion of such money or thing of value would be offered, given or promised, directly or indirectly, to any Government Official,
for the purpose of:
(i) (A) influencing
any act or decision of such Government Official in his/her official capacity, (B) inducing such Government Official to do or omit
to do any act in violation of his/her lawful duty, (C) securing any improper advantage, or (D) inducing such Government Official
to influence or affect any act or decision of any Governmental Entity, or
(ii) assisting
the Company or its Subsidiaries in obtaining or retaining business for or with, or directing business to, the Company or its Subsidiaries.
(p) Sarbanes-Oxley
Act. The Company and each Subsidiary is in compliance with any and all applicable requirements of the Sarbanes-Oxley Act of 2002,
as amended, and any and all applicable rules and regulations promulgated by the SEC thereunder.
(q) Transactions
With Affiliates. Except as disclosed in the SEC Documents, no current or former employee, partner, director, officer or shareholder
(direct or indirect) of the Company or its Subsidiaries, or any associate, or, to the knowledge of the Company, any affiliate of any
thereof, or any relative with a relationship no more remote than first cousin of any of the foregoing, is presently, or has ever been,
(i) a party to any transaction with the Company or its Subsidiaries (including any contract, agreement or other arrangement providing
for the furnishing of services by, or rental of real or personal property from, or otherwise requiring payments to, any such director,
officer or shareholder or such associate or affiliate or relative Subsidiaries (other than for ordinary course services as employees,
officers or directors of the Company or any of its Subsidiaries)) or (ii) the direct or indirect owner of an interest in any corporation,
firm, association or business organization which is a competitor, supplier or customer of the Company or its Subsidiaries (except for
a passive investment (direct or indirect) in less than 5% of the common equity of a company whose securities are traded on or quoted
through an Eligible Market (as defined in Section 4(f))), nor does any such Person receive income from any source other than the
Company or its Subsidiaries which relates to the business of the Company or its Subsidiaries or should properly accrue to the Company
or its Subsidiaries. No employee, officer, shareholder or director of the Company or any of its Subsidiaries or member of his or her
immediate family is indebted to the Company or its Subsidiaries, as the case may be, nor is the Company or any of its Subsidiaries indebted
(or committed to make loans or extend or guarantee credit) to any of them, other than (i) for payment of salary for services rendered,
(ii) reimbursement for reasonable expenses incurred on behalf of the Company, and (iii) for other standard employee benefits
made generally available to all employees or executives (including share option agreements outstanding under any share option plan approved
by the Board of Directors of the Company).
(r) Equity
Capitalization.
(i) Definitions:
(A) “Ordinary
Shares” means (x) the Company’s ordinary shares, $0.30 par value per share, and (y) any share capital into
which such ordinary shares shall have been changed or any share capital resulting from a reclassification of such ordinary shares.
(ii) Authorized
and Outstanding Share Capital. As of the date hereof, the authorized share capital of the Company consists of 10,000,000 Ordinary
Shares, of which, 4,344,966 Ordinary Shares are issued and outstanding. In accordance with Section 3(c) above, within ninety
(90) calendar days of the Initial Closing Date, the Company shall reserve Ordinary Shares for issuance pursuant to Convertible Securities
(as defined below) (other than the Notes and the Warrants) exercisable or exchangeable for, or convertible into, Ordinary Shares. “Convertible
Securities” means any share capital or other security of the Company or any of its Subsidiaries that is at any time and under
any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof
to acquire, any share capital or other security of the Company (including, without limitation, Ordinary Shares) or any of its Subsidiaries.
(iii) Valid
Issuance; Available Shares; Affiliates. All of such outstanding shares are duly authorized and have been, or upon issuance will be,
validly issued and are fully paid and nonassessable. Schedule 3(r)(iii) sets forth the number of Ordinary Shares that are
(A) reserved for issuance pursuant to Convertible Securities (as defined below) (other than the Notes and the Warrants) and (B) that
are, as of the date hereof, owned by Persons who are “affiliates” (as defined in Rule 405 of the 1933 Act and calculated
based on the assumption that only officers, directors and holders of at least 10% of the Company’s issued and outstanding Ordinary
Shares are “affiliates” without conceding that any such Persons are “affiliates” for purposes of federal securities
laws) of the Company or any of its Subsidiaries. To the Company’s knowledge, no Person owns 10% or more of the Company’s
issued and outstanding Ordinary Shares (calculated based on the assumption that all Convertible Securities (as defined below), whether
or not presently exercisable or convertible, have been fully exercised or converted (as the case may be) taking account of
any limitations on exercise or conversion (including “blockers”) contained therein without conceding that such identified
Person is a 10% shareholder for purposes of federal securities laws).
(iv) Existing
Securities; Obligations. Except as disclosed in the SEC Documents: (A) none of the Company’s or any Subsidiary’s
shares, interests or share capital is subject to preemptive rights or any other similar rights or Liens suffered or permitted by the
Company or any Subsidiary; (B) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of
any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares, interests
or share capital of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company
or any of its Subsidiaries is or may become bound to issue additional shares, interests or share capital of the Company or any of its
Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities
or rights convertible into, or exercisable or exchangeable for, any shares, interests or share capital of the Company or any of its Subsidiaries;
(C) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale
of any of their securities under the 1933 Act (except pursuant to the Registration Rights Agreement); (D) there are no outstanding
securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are
no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem
a security of the Company or any of its Subsidiaries; (E) there are no securities or instruments containing anti-dilution or similar
provisions that will be triggered by the issuance of the Securities; and (F) neither the Company nor any Subsidiary has any share
appreciation rights or “phantom share” plans or agreements or any similar plan or agreement.
(v) Organizational
Documents. The Company has furnished to the Buyers true, correct and complete copies of the Company’s certificate of incorporation,
as amended and as in effect on the date hereof, and the Company’s memorandum and articles of association, as amended and as in
effect on the date hereof (the “Memorandum and Articles of Association”), and the terms of all Convertible Securities
and the material rights of the holders thereof in respect thereto.
(s) Indebtedness
and Other Contracts. Neither the Company nor any of its Subsidiaries, (i) except as disclosed on Schedule 3(s),
has any outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing
Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound, (ii) is
a party to any contract, agreement or instrument, the violation of which, or default under which, by the other party(ies) to such contract,
agreement or instrument could reasonably be expected to result in a Material Adverse Effect, (iii) has any financing statements
securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (iv) is in violation of any
term of, or in default under, any contract, agreement or instrument relating to any Indebtedness, except where such violations and defaults
would not result, individually or in the aggregate, in a Material Adverse Effect, or (v) is a party to any contract, agreement or
instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s officers, has or is expected
to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be
disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the
Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have
a Material Adverse Effect. For purposes of this Agreement: (x) “Indebtedness” of any Person means, without duplication
(A) all indebtedness for borrowed money, (B) all obligations issued, undertaken or assumed as the deferred purchase price of
property or services (including, without limitation, “capital leases” in accordance with GAAP) (other than trade payables
entered into in the ordinary course of business consistent with past practice), (C) all reimbursement or payment obligations with
respect to letters of credit, surety bonds and other similar instruments, (D) all obligations evidenced by notes, bonds, debentures
or similar instruments, including obligations so evidenced incurred in connection with the acquisition of property, assets or businesses,
(E) all indebtedness created or arising under any conditional sale or other title retention agreement, or incurred as financing,
in either case with respect to any property or assets acquired with the proceeds of such indebtedness (even though the rights and remedies
of the seller or bank under such agreement in the event of default are limited to repossession or sale of such property), (F) all
monetary obligations under any leasing or similar arrangement which, in connection with GAAP, consistently applied for the periods covered
thereby, is classified as a capital lease, (G) all indebtedness referred to in clauses (A) through (F) above secured by
(or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien upon or in any
property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property
has not assumed or become liable for the payment of such indebtedness, and (H) all Contingent Obligations in respect of indebtedness
or obligations of others of the kinds referred to in clauses (A) through (G) above; and (y) “Contingent Obligation”
means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any Indebtedness,
lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the
primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that
any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part)
against loss with respect thereto.
(t) Litigation.
There is no action, suit, arbitration, proceeding, inquiry or investigation before or by the Principal Market, any court, public board,
other Governmental Entity, self-regulatory organization or body pending or, to the knowledge of the Company, threatened against or affecting
the Company or any of its Subsidiaries, the Ordinary Shares or any of the Company’s or its Subsidiaries’ officers or directors,
whether of a civil or criminal nature or otherwise, in their capacities as such. No director, officer or employee of the Company or any
of its subsidiaries has willfully violated 18 U.S.C. §1519 or engaged in spoliation in reasonable anticipation of litigation. Without
limitation of the foregoing, there has not been, and to the knowledge of the Company, there is not pending or contemplated, any investigation
by the SEC involving the Company, any of its Subsidiaries or any current or former director or officer of the Company or any of its Subsidiaries.
The SEC has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company
under the 1933 Act or the 1934 Act. After reasonable inquiry of its employees, the Company is not aware of any fact which might result
in or form the basis for any such action, suit, arbitration, investigation, inquiry or other proceeding. Neither the Company nor any
of its Subsidiaries is subject to any order, writ, judgment, injunction, decree, determination or award of any Governmental Entity.
(u) Insurance.
The Company has an effective and available directors and officer’s insurance policy from an insurer of recognized financial responsibility
in an aggregate amount of $1,000,000. Neither the Company nor any such Subsidiary has been refused any insurance coverage sought or applied
for, and neither the Company nor any such Subsidiary has any reason to believe that it will be unable to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business
at a cost that would not have a Material Adverse Effect.
(v) Employee
Relations. Neither the Company nor any of its Subsidiaries is a party to any collective bargaining agreement or employs any member
of a union. The Company and its Subsidiaries believe that their relations with their employees are good. No executive officer (as defined
in Rule 501(f) promulgated under the 1933 Act) or other key employee of the Company or any of its Subsidiaries has notified
the Company or any such Subsidiary that such officer intends to leave the Company or any such Subsidiary or otherwise terminate such
officer’s employment with the Company or any such Subsidiary. No current (or former) executive officer or other key employee of
the Company or any of its Subsidiaries is, or is now expected to be, in violation of any material term of any employment contract, confidentiality,
disclosure or proprietary information agreement, non-competition agreement, or any other contract or agreement or any restrictive covenant,
and the continued employment of each such executive officer or other key employee (as the case may be) does not subject the Company or
any of its Subsidiaries to any liability with respect to any of the foregoing matters. The Company and its Subsidiaries are in compliance
with all federal, state, local and foreign laws and regulations respecting labor, employment and employment practices and benefits, terms
and conditions of employment and wages and hours, except where failure to be in compliance would not, either individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect.
(w) Title.
(i) Real
Property. Each of the Company and its Subsidiaries holds good title to all real property, leases in real property, facilities or
other interests in real property owned or held by the Company or any of its Subsidiaries (the “Real Property”) owned
by the Company or any of its Subsidiaries (as applicable). The Real Property is free and clear of all Liens and is not subject to any
rights of way, building use restrictions, exceptions, variances, reservations, or limitations of any nature except for (a) Liens
for current taxes not yet due and (b) zoning laws and other land use restrictions that do not impair the present or anticipated
use of the property subject thereto. Any Real Property held under lease by the Company or any of its Subsidiaries are held by them under
valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed
to be made of such property and buildings by the Company or any of its Subsidiaries.
(ii) Fixtures
and Equipment. Each of the Company and its Subsidiaries (as applicable) has good title to, or a valid leasehold interest in, the
tangible personal property, equipment, improvements, fixtures, and other personal property and appurtenances that are used by the Company
or its Subsidiary in connection with the conduct of its business (the “Fixtures and Equipment”). The Fixtures and
Equipment are structurally sound, are in good operating condition and repair, are adequate for the uses to which they are being put,
are not in need of maintenance or repairs except for ordinary, routine maintenance and repairs and are sufficient for the conduct of
the Company’s and/or its Subsidiaries’ businesses (as applicable) in the manner as conducted prior to the Initial Closing.
Each of the Company and its Subsidiaries owns all of its Fixtures and Equipment free and clear of all Liens except for (a) liens
for current taxes not yet due and (b) zoning laws and other land use restrictions that do not impair the present or anticipated
use of the property subject thereto.
(x) Intellectual
Property Rights. The Company and its Subsidiaries own or possess adequate rights or licenses to use all trademarks, trade names,
service marks, service mark registrations, service names, original works of authorship, patents, patent rights, copyrights, inventions,
licenses, approvals, governmental authorizations, trade secrets and other intellectual property rights and all applications and registrations
therefor (as applicable) (“Intellectual Property Rights”) necessary to conduct their respective businesses as now
conducted and presently proposed to be conducted. Each of patents owned by the Company or any of its Subsidiaries is listed on Schedule
3(x)(i). Except as set forth in Schedule 3(x)(ii), none of the Company’s Intellectual Property Rights have expired or
terminated or have been abandoned or are expected to expire or terminate or are expected to be abandoned, within three years from the
date of this Agreement. The Company does not have any knowledge of any infringement by the Company or its Subsidiaries of Intellectual
Property Rights of others. There is no claim, action or proceeding being made or brought, or to the knowledge of the Company or any of
its Subsidiaries, being threatened, against the Company or any of its Subsidiaries regarding its Intellectual Property Rights. Neither
the Company nor any of its Subsidiaries is aware of any facts or circumstances which might give rise to any of the foregoing infringements
or claims, actions or proceedings. The Company and its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality
and value of all of their Intellectual Property Rights.
(y) Environmental
Laws. (i) To the extent applicable, the Company and its Subsidiaries (A) are in compliance with any and all Environmental
Laws (as defined below), (B) have received all permits, licenses or other approvals required of them under applicable Environmental
Laws to conduct their respective businesses and (C) are in compliance with all terms and conditions of any such permit, license
or approval where, in each of the foregoing clauses (A), (B) and (C), the failure to so comply could be reasonably expected to have,
individually or in the aggregate, a Material Adverse Effect. The term “Environmental Laws” means all federal, state,
local or foreign laws relating to pollution or protection of human health or the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface strata), including, without limitation, laws relating to emissions, discharges,
releases or threatened releases of chemicals, pollutants, contaminants, or toxic or hazardous substances or wastes (collectively, “Hazardous
Materials”) into the environment, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials, as well as all authorizations, codes, decrees, demands or demand letters, injunctions,
judgments, licenses, notices or notice letters, orders, permits, plans or regulations issued, entered, promulgated or approved thereunder.
(ii) To
the extent applicable, no Hazardous Materials:
(A) have
been disposed of or otherwise released from any Real Property of the Company or any of its Subsidiaries in violation of any Environmental
Laws; or
(B) are
present on, over, beneath, in or upon any Real Property or any portion thereof in quantities that would constitute a violation of any
Environmental Laws. No prior use by the Company or any of its Subsidiaries of any Real Property has occurred that violates any Environmental
Laws, which violation would have a material adverse effect on the business of the Company or any of its Subsidiaries.
(iii) Neither
the Company nor any of its Subsidiaries knows of any other person who or entity which has stored, treated, recycled, disposed of or otherwise
located on any Real Property any Hazardous Materials, including, without limitation, such substances as asbestos and polychlorinated
biphenyls.
(iv) None
of the Real Properties are on any federal or state “Superfund” list or Liability Information System (“CERCLIS”)
list or any state environmental agency list of sites under consideration for CERCLIS, nor subject to any environmental related Liens.
(z) Subsidiary
Rights. The Company or one of its Subsidiaries has the unrestricted right to vote, and (subject to limitations imposed by applicable
law) to receive dividends and distributions on, all capital securities of its Subsidiaries as owned by the Company or such Subsidiary.
(aa) Tax
Status. The Company and each of its Subsidiaries (i) has timely made or filed all foreign, federal and state income and all
other tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has timely paid all taxes
and other governmental assessments and charges that are material in amount, shown or determined to be due on such returns, reports and
declarations, except those being contested in good faith and (iii) has set aside on its books provision reasonably adequate for
the payment of all taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid
taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company and its Subsidiaries
know of no basis for any such claim. The Company is not operated in such a manner as to qualify as a passive foreign investment company,
as defined in Section 1297 of the Code. The net operating loss carryforwards (“NOLs”) for United States federal
income tax purposes of the consolidated group of which the Company is the common parent, if any, shall not be adversely effected by the
transactions contemplated hereby. The transactions contemplated hereby do not constitute an “ownership change” within the
meaning of Section 382 of the Code, thereby preserving the Company’s ability to utilize such NOLs.
(bb) Internal
Accounting and Disclosure Controls. Except as otherwise disclosed in the SEC Documents, the Company and each of its Subsidiaries
maintains internal control over financial reporting (as such term is defined in Rule 13a-15(f) under the 1934 Act) that is
effective to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements
for external purposes in accordance with generally accepted accounting principles, including that (i) transactions are executed
in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to maintain asset and liability accountability, (iii) access to
assets or incurrence of liabilities is permitted only in accordance with management’s general or specific authorization and (iv) the
recorded accountability for assets and liabilities is compared with the existing assets and liabilities at reasonable intervals and appropriate
action is taken with respect to any difference. The Company maintains disclosure controls and procedures (as such term is defined in
Rule 13a-15(e) under the 1934 Act) that are effective in ensuring that information required to be disclosed by the Company
in the reports that it files or submits under the 1934 Act is recorded, processed, summarized and reported, within the time periods specified
in the rules and forms of the SEC, including, without limitation, controls and procedures designed to ensure that information required
to be disclosed by the Company in the reports that it files or submits under the 1934 Act is accumulated and communicated to the Company’s
management, including its principal executive officer or officers and its principal financial officer or officers, as appropriate, to
allow timely decisions regarding required disclosure. Neither the Company nor any of its Subsidiaries has received any notice or correspondence
from any accountant, Governmental Entity or other Person relating to any potential material weakness or significant deficiency in any
part of the internal controls over financial reporting of the Company or any of its Subsidiaries.
(cc) Off
Balance Sheet Arrangements. There is no transaction, arrangement, or other relationship between the Company or any of its Subsidiaries
and an unconsolidated or other off balance sheet entity that is required to be disclosed by the Company in its 1934 Act filings and is
not so disclosed or that otherwise could be reasonably likely to have a Material Adverse Effect.
(dd) Investment
Company Status. The Company is not, and upon consummation of the sale of the Securities will not be, an “investment company,”
an affiliate of an “investment company,” a company controlled by an “investment company” or an “affiliated
person” of, or “promoter” or “principal underwriter” for, an “investment company” as such terms
are defined in the Investment Company Act of 1940, as amended.
(ee) Acknowledgement
Regarding Buyers’ Trading Activity. It is understood and acknowledged by the Company that (i) following the public disclosure
of the transactions contemplated by the Transaction Documents, in accordance with the terms thereof, none of the Buyers have been asked
by the Company or any of its Subsidiaries to agree, nor has any Buyer agreed with the Company or any of its Subsidiaries, to desist from
effecting any transactions in or with respect to (including, without limitation, purchasing or selling, long and/or short) any securities
of the Company, or “derivative” securities based on securities issued by the Company or to hold any of the Securities for
any specified term; (ii) any Buyer, and counterparties in “derivative” transactions to which any such Buyer is a party,
directly or indirectly, presently may have a “short” position in the Ordinary Shares which was established prior to such
Buyer’s knowledge of the transactions contemplated by the Transaction Documents; (iii) each Buyer shall not be deemed to have
any affiliation with or control over any arm’s length counterparty in any “derivative” transaction; and (iv) each
Buyer may rely on the Company’s obligation to timely deliver Ordinary Shares upon conversion, exercise or exchange, as applicable,
of the Securities as and when required pursuant to the Transaction Documents for purposes of effecting trading in the Ordinary Shares
of the Company. The Company further understands and acknowledges that following the public disclosure of the transactions contemplated
by the Transaction Documents one or more Buyers may engage in hedging and/or trading activities (including, without limitation, the location
and/or reservation of borrowable Ordinary Shares) at various times during the period that the Securities are outstanding, including,
without limitation, during the periods that the value and/or number of the Warrant Shares or Conversion Shares, as applicable, deliverable
with respect to the Securities are being determined and such hedging and/or trading activities (including, without limitation, the location
and/or reservation of borrowable Ordinary Shares), if any, can reduce the value of the existing shareholders’ equity interest in
the Company both at and after the time the hedging and/or trading activities are being conducted. The Company acknowledges that such
aforementioned hedging and/or trading activities do not constitute a breach of this Agreement, the Notes, the Warrants or any other Transaction
Document or any of the documents executed in connection herewith or therewith.
(ff) Manipulation
of Price. Neither the Company nor any of its Subsidiaries has, and, to the knowledge of the Company, no Person acting on their behalf
has, directly or indirectly, (i) taken any action designed to cause or to result in the stabilization or manipulation of the price
of any security of the Company or any of its Subsidiaries to facilitate the sale or resale of any of the Securities, (ii) sold,
bid for, purchased, or paid any compensation for soliciting purchases of, any of the Securities, (iii) paid or agreed to pay to
any Person any compensation for soliciting another to purchase any other securities of the Company or any of its Subsidiaries or (iv) paid
or agreed to pay any Person for research services with respect to any securities of the Company or any of its Subsidiaries.
(gg) U.S.
Real Property Holding Corporation. Neither the Company nor any of its Subsidiaries is, or has ever been, and so long as any of the
Securities are held by any of the Buyers, shall become, a U.S. real property holding corporation within the meaning of Section 897
of the Code, and the Company and each Subsidiary shall so certify upon any Buyer’s request.
(hh) Registration
Eligibility. The Company is eligible to register the Registrable Securities (as defined in the Registration Rights Agreement) for
resale by the Buyers using Form F-3 promulgated under the 1933 Act.
(ii) Transfer
Taxes. On each Closing Date, all share transfer or other taxes (other than income or similar taxes) which are required to be paid
in connection with the issuance, sale and transfer of the Securities to be sold to each Buyer hereunder will be, or will have been, fully
paid or provided for by the Company, and all laws imposing such taxes will be or will have been complied with.
(jj) Bank
Holding Company Act. Neither the Company nor any of its Subsidiaries is subject to the Bank Holding Company Act of 1956, as amended
(the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the “Federal Reserve”).
Neither the Company nor any of its Subsidiaries or affiliates owns or controls, directly or indirectly, five percent (5%) or more of
the outstanding shares of any class of voting securities or twenty-five percent (25%) or more of the total equity of a bank or any entity
that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its Subsidiaries or affiliates exercises
a controlling influence over the management or policies of a bank or any entity that is subject to the BHCA and to regulation by the
Federal Reserve.
(kk) Shell
Company Status. The Company is not, and has never been, an issuer identified in, or subject to, Rule 144(i).
(ll) Illegal
or Unauthorized Payments; Political Contributions. Neither the Company nor any of its Subsidiaries nor, to the best of the Company’s
knowledge (after reasonable inquiry of its officers and directors), any of the officers, directors, employees, agents or other representatives
of the Company or any of its Subsidiaries or any other business entity or enterprise with which the Company or any Subsidiary is or has
been affiliated or associated, has, directly or indirectly, made or authorized any payment, contribution or gift of money, property,
or services, whether or not in contravention of applicable law, (i) as a kickback or bribe to any Person or (ii) to any political
organization, or the holder of or any aspirant to any elective or appointive public office except for personal political contributions
not involving the direct or indirect use of funds of the Company or any of its Subsidiaries.
(mm) Money
Laundering. The Company and its Subsidiaries are in compliance with, and have not previously violated, the USA Patriot Act of 2001
and all other applicable U.S. and non-U.S. anti-money laundering laws and regulations, including, without limitation, the laws, regulations
and Executive Orders and sanctions programs administered by the U.S. Office of Foreign Assets Control, including, but not limited, to
(i) Executive Order 13224 of September 23, 2001 entitled, “Blocking Property and Prohibiting Transactions With Persons
Who Commit, Threaten to Commit, or Support Terrorism” (66 Fed. Reg. 49079 (2001)); and (ii) any regulations contained in 31
CFR, Subtitle B, Chapter V.
(nn) Management.
During the past five year period, no current or former officer or director or, to the knowledge of the Company, no current ten percent
(10%) or greater shareholder of the Company or any of its Subsidiaries has been the subject of:
(i) a
petition under bankruptcy laws or any other insolvency or moratorium law or the appointment by a court of a receiver, fiscal agent or
similar officer for such Person, or any partnership in which such person was a general partner at or within two years before the filing
of such petition or such appointment, or any corporation or business association of which such person was an executive officer at or
within two years before the time of the filing of such petition or such appointment;
(ii) a
conviction in a criminal proceeding or a named subject of a pending criminal proceeding (excluding traffic violations that do not relate
to driving while intoxicated or driving under the influence);
(iii) any
order, judgment or decree, not subsequently reversed, suspended or vacated, of any court of competent jurisdiction, permanently or temporarily
enjoining any such person from, or otherwise limiting, the following activities:
(1) Acting
as a futures commission merchant, introducing broker, commodity trading advisor, commodity pool operator, floor broker, leverage transaction
merchant, any other person regulated by the United States Commodity Futures Trading Commission or an associated person of any of the
foregoing, or as an investment adviser, underwriter, broker or dealer in securities, or as an affiliated person, director or employee
of any investment company, bank, savings and loan association or insurance company, or engaging in or continuing any conduct or practice
in connection with such activity;
(2) Engaging
in any particular type of business practice; or
(3) Engaging
in any activity in connection with the purchase or sale of any security or commodity or in connection with any violation of securities
laws or commodities laws;
(iv) any
order, judgment or decree, not subsequently reversed, suspended or vacated, of any authority barring, suspending or otherwise limiting
for more than sixty (60) days the right of any such person to engage in any activity described in the preceding sub paragraph, or to
be associated with persons engaged in any such activity;
(v) a
finding by a court of competent jurisdiction in a civil action or by the SEC or other authority to have violated any securities law,
regulation or decree and the judgment in such civil action or finding by the SEC or any other authority has not been subsequently reversed,
suspended or vacated; or
(vi) a
finding by a court of competent jurisdiction in a civil action or by the Commodity Futures Trading Commission to have violated any federal
commodities law, and the judgment in such civil action or finding has not been subsequently reversed, suspended or vacated.
(oo) Share
Option Plans. Each share option granted by the Company
was granted (i) in accordance with the terms of the applicable share option plan of the Company and (ii) with an exercise price
at least equal to the fair market value of the Ordinary Shares on the date such share option would be considered granted under GAAP and
applicable law. No share option granted under the Company’s share option plan has been backdated. The Company has not knowingly
granted, and there is no and has been no policy or practice of the Company to knowingly grant, share options prior to, or otherwise knowingly
coordinate the grant of share options with, the release or other public announcement of material information regarding the Company or
its Subsidiaries or their financial results or prospects.
(pp) No
Disagreements with Accountants and Lawyers. There are no
material disagreements of any kind presently existing, or reasonably anticipated by the Company to arise, between the Company and the
accountants and lawyers formerly or presently employed by the Company and the Company is current with respect to any fees owed to its
accountants and lawyers which could affect the Company’s ability to perform any of its obligations under any of the Transaction
Documents. In addition, on or prior to the date hereof, the Company had discussions with its accountants about its financial statements
previously filed with the SEC. Based on those discussions, the Company has no reason to believe that it will need to restate any such
financial statements or any part thereof.
(qq) No
Disqualification Events. With respect to Securities to
be offered and sold hereunder in reliance on Rule 506(b) under the 1933 Act (“Regulation D Securities”),
none of the Company, any of its predecessors, any affiliated issuer, any director, executive officer, other officer of the Company participating
in the offering contemplated hereby, any beneficial owner of 20% or more of the Company’s outstanding voting equity securities,
calculated on the basis of voting power, nor any promoter (as that term is defined in Rule 405 under the 1933 Act) connected with
the Company in any capacity at the time of sale (each, an “Issuer Covered Person” and, together, “Issuer
Covered Persons”) is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to
(viii) under the 1933 Act (a “Disqualification Event”), except for a Disqualification Event covered by Rule 506(d)(2) or
(d)(3). The Company has exercised reasonable care to determine whether any Issuer Covered Person is subject to a Disqualification Event.
The Company has complied, to the extent applicable, with its disclosure obligations under Rule 506(e), and has furnished to the
Buyers a copy of any disclosures provided thereunder.
(rr) Other
Covered Persons. The Company is not aware of any Person
that has been or will be paid (directly or indirectly) remuneration for solicitation of Buyers or potential purchasers in connection
with the sale of any Regulation D Securities.
(ss) No
Additional Agreements. The Company does not have any agreement or understanding with any Buyer with respect to the transactions contemplated
by the Transaction Documents other than as specified in the Transaction Documents.
(tt) Public
Utility Holding Act. None of the Company nor any of its Subsidiaries is a “holding company,” or an “affiliate”
of a “holding company,” as such terms are defined in the Public Utility Holding Act of 2005.
(uu) Federal
Power Act. None of the Company nor any of its Subsidiaries is subject to regulation as a “public utility” under the Federal
Power Act, as amended.
(vv) Ranking
of Notes. Other than Permitted Indebtedness (as defined in the Notes) secured by Permitted Liens (as defined in the Notes), if any,
no Indebtedness of the Company, at each Closing, will be senior to, or pari passu with, the Notes in right of payment, whether
with respect to payment or redemptions, interest, damages, upon liquidation or dissolution or otherwise.
(ww) Cybersecurity.
To the extent applicable, the Company and its Subsidiaries’ information technology assets and equipment, computers, systems, networks,
hardware, software, websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate
and perform in all material respects as required in connection with the operation of the business of the Company and its subsidiaries
as currently conducted, free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants
that would reasonably be expected to have a Material Adverse Effect on the Company’s business. The Company and its Subsidiaries
have implemented and maintained commercially reasonable physical, technical and administrative controls, policies, procedures, and safeguards
to maintain and protect their material confidential information and the integrity, continuous operation, redundancy and security of all
IT Systems and data, including “Personal Data,” used in connection with their businesses. “Personal Data”
means (i) a natural person’s name, street address, telephone number, e-mail address, photograph, social security number or
tax identification number, driver’s license number, passport number, credit card number, bank information, or customer or account
number; (ii) any information which would qualify as “personally identifying information” under the Federal Trade Commission
Act, as amended; (iii) “personal data” as defined by the European Union General Data Protection Regulation (“GDPR”)
(EU 2016/679); (iv) any information which would qualify as “protected health information” under the Health Insurance
Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act (collectively,
“HIPAA”); and (v) any other piece of information that allows the identification of such natural person, or his
or her family, or permits the collection or analysis of any data related to an identified person’s health or sexual orientation.
There have been no breaches, violations, outages or unauthorized uses of or accesses to same, except for those that have been remedied
without material cost or liability or the duty to notify any other person or such, nor any incidents under internal review or investigations
relating to the same except in each case, where such would not, either individually or in the aggregate, reasonably be expected to result
in a Material Adverse Effect. The Company and its Subsidiaries are presently in compliance with all applicable laws or statutes and all
judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and
contractual obligations relating to the privacy and security of IT Systems and Personal Data and to the protection of such IT Systems
and Personal Data from unauthorized use, access, misappropriation or modification except in each case, where such would not, either individually
or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
(xx) Compliance
with Data Privacy Laws. To the extent applicable, the Company and its Subsidiaries are, and at all prior times were, in compliance
with all applicable state and federal data privacy and security laws and regulations, including without limitation HIPAA, and the Company
and its Subsidiaries have taken commercially reasonable actions to prepare to comply with, and since May 25, 2018, have been and
currently are in compliance with, the GDPR (EU 2016/679) (collectively, the “Privacy Laws”) except in each case, where
such would not, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. To ensure compliance
with the Privacy Laws, the Company and its Subsidiaries have in place, comply with, and take appropriate steps reasonably designed to
ensure compliance in all material respects with their policies and procedures relating to data privacy and security and the collection,
storage, use, disclosure, handling, and analysis of Personal Data (the “Policies”). The Company and its Subsidiaries
have at all times made all disclosures to users or customers required by applicable laws and regulatory rules or requirements, and
none of such disclosures made or contained in any Policy have, to the knowledge of the Company, been inaccurate or in violation of any
applicable laws and regulatory rules or requirements in any material respect. The Company further certifies that neither it nor
any Subsidiary: (i) has received notice of any actual or potential liability under or relating to, or actual or potential violation
of, any of the Privacy Laws, and has no knowledge of any event or condition that would reasonably be expected to result in any such notice;
(ii) is currently conducting or paying for, in whole or in part, any investigation, remediation, or other corrective action pursuant
to any Privacy Law; or (iii) is a party to any order, decree, or agreement that imposes any obligation or liability under any Privacy
Law.
(yy) Disclosure.
The Company confirms that neither it nor any other Person acting on its behalf has provided any of the Buyers or their agents or counsel
with any information that constitutes or could reasonably be expected to constitute material, non-public information concerning the Company
or any of its Subsidiaries, other than the existence of the transactions contemplated by this Agreement and the other Transaction Documents.
The Company understands and confirms that each of the Buyers will rely on the foregoing representations in effecting transactions in
securities of the Company. All disclosure provided to the Buyers regarding the Company and its Subsidiaries, their businesses and the
transactions contemplated hereby, including the schedules to this Agreement, furnished by or on behalf of the Company or any of its Subsidiaries
is true and correct and does not contain any untrue statement of a material fact or omit to state any material fact necessary in order
to make the statements made therein, in the light of the circumstances under which they were made, not misleading. All of the written
information furnished after the date hereof by or on behalf of the Company or any of its Subsidiaries to each Buyer pursuant to or in
connection with this Agreement and the other Transaction Documents, taken as a whole, will be true and correct in all material respects
as of the date on which such information is so provided and will not contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made,
not misleading. Each press release issued by the Company or any of its Subsidiaries during the twelve (12) months preceding the date
of this Agreement did not at the time of release contain any untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they are made,
not misleading. No event or circumstance has occurred or information exists with respect to the Company or any of its Subsidiaries or
its or their business, properties, liabilities, prospects, operations (including results thereof) or conditions (financial or otherwise),
which, under applicable law, rule or regulation, requires public disclosure at or before the date hereof or announcement by the
Company but which has not been so publicly disclosed. All financial projections and forecasts that have been prepared by or on behalf
of the Company or any of its Subsidiaries and made available to you have been prepared in good faith based upon reasonable assumptions
and represented, at the time each such financial projection or forecast was delivered to each Buyer, the Company’s best estimate
of future financial performance (it being recognized that such financial projections or forecasts are not to be viewed as facts and that
the actual results during the period or periods covered by any such financial projections or forecasts may differ from the projected
or forecasted results). The Company acknowledges and agrees that no Buyer makes or has made any representations or warranties with respect
to the transactions contemplated hereby other than those specifically set forth in Section 2.
4. COVENANTS.
(a) Best
Efforts. Each Buyer shall use its best efforts to timely satisfy each of the covenants hereunder and conditions to be satisfied by
it as provided in Section 6 of this Agreement. The Company shall use its best efforts to timely satisfy each of the covenants hereunder
and conditions to be satisfied by it as provided in Section 7 of this Agreement.
(b) Form D
and Blue Sky. The Company shall file a Form D with respect to the Securities as required under Regulation D and to provide a
copy thereof to each Buyer promptly after such filing. The Company shall, on or before the applicable Closing Date, take such action
as the Company shall reasonably determine is necessary in order to obtain an exemption for, or to, qualify the Securities for sale to
the Buyers at such Closing pursuant to this Agreement under applicable securities or “Blue Sky” laws of the states of the
United States (or to obtain an exemption from such qualification), and shall provide evidence of any such action so taken to the Buyers
on or prior to such Closing Date. Without limiting any other obligation of the Company under this Agreement, the Company shall timely
make all filings and reports relating to the offer and sale of the Securities required under all applicable securities laws (including,
without limitation, all applicable federal securities laws and all applicable “Blue Sky” laws), and the Company shall comply
with all applicable foreign, federal, state and local laws, statutes, rules, regulations and the like relating to the offering and sale
of the Securities to the Buyers.
(c) Reporting
Status. Until the date on which the Buyers shall have sold all of the Registrable Securities (the “Reporting Period”),
the Company shall timely file all reports required to be filed with the SEC pursuant to the 1934 Act, and the Company shall not terminate
its status as an issuer required to file reports under the 1934 Act even if the 1934 Act or the rules and regulations thereunder
would no longer require or otherwise permit such termination.
(d) Use
of Proceeds. The Company will use (x) at least $100,000 of the proceeds from the sale of the Securities for marketing
and investor relations purposes reasonably acceptable to the Required Holders, (y) $5,645,400 of the proceeds from the sale of the
Securities shall be deposited in the Controlled Account (as defined in the Security Agreement) of the New LLC (the “Contribution”),
and (z) the remainder of the proceeds from the sale of the Securities for general corporate purposes, but not, directly or indirectly,
for (i) the satisfaction of any indebtedness of the Company or any of its Subsidiaries, (ii) the redemption or repurchase of
any securities of the Company or any of its Subsidiaries, or (iii) the settlement of any outstanding litigation.
(e) Financial
Information. The Company agrees to send the following to each Investor (as defined in the Registration Rights Agreement) during the
Reporting Period (i) unless the following are filed with the SEC through EDGAR and are available to the public through the EDGAR
system, within one (1) Business Day after the filing thereof with the SEC, a copy of its Annual Report on Form 20-F, Report
of Foreign Issuer on Form 6-K, any other interim reports or any consolidated balance sheets, income statements, shareholders’
equity statements and/or cash flow statements for any period other than annual, any Report of Foreign Issuer on Form 6-K and any
registration statements (other than on Form S-8) or amendments filed pursuant to the 1933 Act, (ii) unless the following are
either filed with the SEC through EDGAR or are otherwise widely disseminated via a recognized news release service (such as PR Newswire),
on the same day as the release thereof, e-mail copies of all press releases issued by the Company or any of its Subsidiaries and (iii) unless
the following are filed with the SEC through EDGAR, copies of any notices and other information made available or given to the shareholders
of the Company generally, contemporaneously with the making available or giving thereof to the shareholders.
(f) Listing.
The Company shall promptly secure the listing or designation for quotation (as the case may be) of all of the Registrable Securities
upon each national securities exchange and automated quotation system, if any, upon which the Ordinary Shares is then listed or designated
for quotation (as the case may be) (subject to official notice of issuance) and shall maintain such listing or designation for quotation
(as the case may be) of all Registrable Securities from time to time issuable under the terms of the Transaction Documents on such national
securities exchange or automated quotation system. The Company shall maintain the Ordinary Shares’ listing or authorization for
quotation (as the case may be) on the Principal Market, The New York Stock Exchange, the NYSE American, the Nasdaq Global Select Market,
or the Nasdaq Global Market (each, an “Eligible Market”). Neither the Company nor any of its Subsidiaries shall take
any action which could be reasonably expected to result in the delisting or suspension of the Ordinary Shares on an Eligible Market.
The Company shall pay all fees and expenses in connection with satisfying its obligations under this Section 4(f).
(g) Fees.
The Company shall reimburse the lead Buyer a (i) non-accountable amount of $100,000 for all costs and expenses incurred by it or
its affiliates in connection with the structuring, documentation, negotiation and closing of the transactions contemplated by the Transaction
Documents (including, without limitation, as applicable, all reasonable legal fees of outside counsel and disbursements of Kelley Drye &
Warren LLP, counsel to the lead Buyer, any other reasonable fees and expenses in connection with the structuring, documentation, negotiation
and closing of the transactions contemplated by the Transaction Documents and due diligence and regulatory filings in connection therewith)
(the “Transaction Expenses”) and shall be withheld by the lead Buyer from its Initial Purchase Price at the Initial
Closing and (ii) a non-accountable amount of $15,000 for Transaction Expenses that shall be withheld by the lead Buyer from its
Additional Purchase Price at each Additional Closing; provided, that the Company shall promptly reimburse Kelley Drye & Warren
LLP on demand for all Transaction Expenses not so reimbursed through such withholding at such Closing. The Company shall be responsible
for the payment of any placement agent’s fees, financial advisory fees, transfer agent fees, DTC (as defined below) fees or broker’s
commissions (other than for Persons engaged by any Buyer) relating to or arising out of the transactions contemplated hereby. The Company
shall pay, and hold each Buyer harmless against, any liability, loss or expense (including, without limitation, reasonable attorneys’
fees and out-of-pocket expenses) arising in connection with any claim relating to any such payment. Except as otherwise set forth in
the Transaction Documents, each party to this Agreement shall bear its own expenses in connection with the sale of the Securities to
the Buyers.
(h) Pledge
of Securities. Notwithstanding anything to the contrary contained in this Agreement, the Company acknowledges and agrees that the
Securities may be pledged by an Investor in connection with a bona fide margin agreement or other loan or financing arrangement that
is secured by the Securities. The pledge of Securities shall not be deemed to be a transfer, sale or assignment of the Securities hereunder,
and no Investor effecting a pledge of Securities shall be required to provide the Company with any notice thereof or otherwise make any
delivery to the Company pursuant to this Agreement or any other Transaction Document, including, without limitation, Section 2(g) hereof;
provided that an Investor and its pledgee shall be required to comply with the provisions of Section 2(g) hereof in
order to effect a sale, transfer or assignment of Securities to such pledgee. The Company hereby agrees to execute and deliver such documentation
as a pledgee of the Securities may reasonably request in connection with a pledge of the Securities to such pledgee by a Buyer.
(i) Disclosure
of Transactions and Other Material Information.
(i) Disclosure
of Transaction. On or before 9:00 a.m., New York time, on the first (1st) Business Day after the date of this Agreement,
the Company shall file a Report of Foreign Issuer on Form 6-K describing all the material terms of the transactions contemplated
by the Transaction Documents in the form required by the 1934 Act and attaching all the material Transaction Documents (including, without
limitation, this Agreement (and all schedules to this Agreement), the form of Notes, the form of the Warrants, the form of Guaranties,
the form of Security Agreement, and the form of the Registration Rights Agreement) (including all attachments, the “Initial
6-K Filing”). From and after the filing of the Initial 6-K Filing (but prior to the delivery of an Additional Closing Notice
to the Company), the Company shall have disclosed all material, non-public information (if any) provided to any of the Buyers by the
Company or any of its Subsidiaries or any of their respective officers, directors, employees or agents in connection with the transactions
contemplated by the Transaction Documents. In addition, effective upon the filing of the Initial 6-K Filing, the Company acknowledges
and agrees that any and all confidentiality or similar obligations under any agreement, whether written or oral, between the Company,
any of its Subsidiaries or any of their respective officers, directors, affiliates, employees or agents, on the one hand, and any of
the Buyers or any of their affiliates, on the other hand, shall terminate. From and after the filing of the Initial 6-K Filing (but prior
to the delivery of an Additional Closing Notice to the Buyers), the Company shall have disclosed all material, non-public information
(if any) provided to any of the Buyers by the Company or any of its Subsidiaries or any of their respective officers, directors, employees
or agents in connection with the transactions contemplated by the Transaction Documents. The Company shall, on or before 9:30 a.m., New
York time, on the first (1st) Business Day after the Company receives an Additional Closing Notice, either issue a press release (the
“Press Release”) or file a Report of Foreign Issuer on Form 6-K (the “Additional 6-K Filing”,
and together with the Initial 6-K Filing, the “6-K Filings”), in each case reasonably acceptable to such Buyer participation
in such Additional Closing, disclosing that “an institutional investor” has elected to deliver an Additional Closing Notice
to the Company. From and after the filing of the Press Release or Additional 6-K Filing, the Company shall have disclosed all material,
non-public information (if any) provided to any of the Buyers by the Company or any of its Subsidiaries or any of their respective officers,
directors, employees or agents in connection with the transactions contemplated by the Transaction Documents. In addition, effective
upon the filing of the Additional 6-K Filing, the Company acknowledges and agrees that any and all confidentiality or similar obligations
under any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors,
affiliates, employees or agents, on the one hand, and any of the Buyers or any of their affiliates, on the other hand, shall terminate.
(ii) Limitations
on Disclosure. The Company shall not, and the Company shall cause each of its Subsidiaries and each of its and their respective officers,
directors, employees and agents not to, provide any Buyer with any material, non-public information regarding the Company or any of its
Subsidiaries from and after the date hereof without the express prior written consent of such Buyer (which may be granted or withheld
in such Buyer’s sole discretion) except as required by applicable law and regulations or pursuant to Section 4(o) hereof.
In the event of a breach of any of the foregoing covenants, including, without limitation, Section 4(o) of this Agreement,
or any of the covenants or agreements contained in any other Transaction Document, by the Company, any of its Subsidiaries, or any of
its or their respective officers, directors, employees and agents (as determined in the reasonable good faith judgment of such Buyer),
in addition to any other remedy provided herein or in the Transaction Documents, such Buyer shall have the right to make a public disclosure,
in the form of a press release, public advertisement or otherwise, of such breach or such material, non-public information, as applicable,
without the prior approval by the Company, any of its Subsidiaries, or any of its or their respective officers, directors, employees
or agents. No Buyer shall have any liability to the Company, any of its Subsidiaries, or any of its or their respective officers, directors,
employees, affiliates, shareholders or agents, for any such disclosure. To the extent that the Company delivers any material, non-public
information to a Buyer without such Buyer’s consent, the Company hereby covenants and agrees that such Buyer shall not have any
duty of confidentiality with respect to, or a duty not to trade on the basis of, such material, non-public information. Subject to the
foregoing, neither the Company, its Subsidiaries nor any Buyer shall issue any press releases or any other public statements with respect
to the transactions contemplated hereby; provided, however, the Company shall be entitled, without the prior approval of any Buyer, to
make the Press Release and any press release or other public disclosure with respect to such transactions (i) in substantial conformity
with the 6-K Filings and contemporaneously therewith and (ii) as is required by applicable law and regulations (provided that in
the case of clause (i) each Buyer shall be consulted by the Company in connection with any such press release or other public disclosure
prior to its release). Without the prior written consent of the applicable Buyer (which may be granted or withheld in such Buyer’s
sole discretion), the Company shall not (and shall cause each of its Subsidiaries and affiliates to not) disclose the name of such Buyer
in any filing, announcement, release or otherwise. Notwithstanding anything contained in this Agreement to the contrary and without implication
that the contrary would otherwise be true, the Company expressly acknowledges and agrees that no Buyer shall have (unless expressly agreed
to by a particular Buyer after the date hereof in a written definitive and binding agreement executed by the Company and such particular
Buyer (it being understood and agreed that no Buyer may bind any other Buyer with respect thereto)), any duty of confidentiality with
respect to, or a duty not to trade on the basis of, any material, non-public information regarding the Company or any of its Subsidiaries.
(iii) Other
Confidential Information. Disclosure Failures; Disclosure Delay Payments. In addition to other remedies set forth in this Section 4(i),
and without limiting anything set forth in any other Transaction Document, at any time after the Closing Date if the Company, any of
its Subsidiaries, or any of their respective officers, directors, employees or agents, provides any Buyer with material non-public information
relating to the Company or any of its Subsidiaries (each, the “Confidential Information”), the Company shall, on or
prior to the applicable Required Disclosure Date (as defined below), publicly disclose such Confidential Information on a Report of Foreign
Issuer on Form 6-K or otherwise (each, a “Disclosure”). From and after such Disclosure, the Company shall have
disclosed all Confidential Information provided to such Buyer by the Company or any of its Subsidiaries or any of their respective officers,
directors, employees or agents in connection with the transactions contemplated by the Transaction Documents. In addition, effective
upon such Disclosure, the Company acknowledges and agrees that any and all confidentiality or similar obligations under any agreement,
whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors, affiliates, employees
or agents, on the one hand, and any of the Buyers or any of their affiliates, on the other hand, shall terminate. In the event that the
Company fails to effect such Disclosure on or prior to the Required Disclosure Date and such Buyer shall have possessed Confidential
Information for at least ten (10) consecutive Trading Days (each, a “Disclosure Failure”), then, as partial relief
for the damages to such Buyer by reason of any such delay in, or reduction of, its ability to buy or sell Ordinary Shares after such
Required Disclosure Date (which remedy shall not be exclusive of any other remedies available at law or in equity), the Company shall
pay to such Buyer an amount in cash equal to the greater of (I) two percent (2%) of the aggregate principal of Notes purchased by
such Buyer hereunder and (II) the applicable Disclosure Restitution Amount, on each of the following dates (each, a “Disclosure
Delay Payment Date”): (i) on the date of such Disclosure Failure and (ii) on every thirty (30) day anniversary such
Disclosure Failure until the earlier of (x) the date such Disclosure Failure is cured and (y) such time as all such non-public
information provided to such Buyer shall cease to be Confidential Information (as evidenced by a certificate, duly executed by an authorized
officer of the Company to the foregoing effect) (such earlier date, as applicable, a “Disclosure Cure Date”). Following
the initial Disclosure Delay Payment for any particular Disclosure Failure, without limiting the foregoing, if a Disclosure Cure Date
occurs prior to any thirty (30) day anniversary of such Disclosure Failure, then such Disclosure Delay Payment (prorated for such partial
month) shall be made on the second (2nd) Business Day after such Disclosure Cure Date. The payments to which a Buyer shall be entitled
pursuant to this Section 4(i)(iii) are referred to herein as “Disclosure Delay Payments.” In the event the
Company fails to make Disclosure Delay Payments in a timely manner in accordance with the foregoing, such Disclosure Delay Payments shall
bear interest at the rate of two percent (2%) per month (prorated for partial months) until paid in full.
(iv) For
the purpose of this Agreement the following definitions shall apply:
(1) “Disclosure
Failure Market Price” means, as of any Disclosure Delay Payment Date, the price computed as the quotient of (I) the sum
of the five (5) highest VWAPs (as defined in the Warrants) of the Ordinary Shares during the applicable Disclosure Restitution Period
(as defined below), divided by (II) five (5) (such period, the “Disclosure Failure Measuring Period”). All
such determinations to be appropriately adjusted for any share dividend, share split, share combination, reclassification or similar
transaction that proportionately decreases or increases the Ordinary Shares during such Disclosure Failure Measuring Period.
(2) “Disclosure
Restitution Amount” means, as of any Disclosure Delay Payment Date, the product of (x) difference of (I) the Disclosure
Failure Market Price less (II) the lowest purchase price, per Ordinary Share, of any Ordinary Shares issued or issuable to such
Buyer pursuant to this Agreement or any other Transaction Documents, multiplied by (y) 10% of the aggregate daily dollar trading
volume (as reported on Bloomberg (as defined in the Warrants)) of the Ordinary Shares on the Principal Market for each Trading Day (as
defined in the Warrants) either (1) with respect to the initial Disclosure Delay Payment Date, during the period commencing on the
applicable Required Disclosure Date through and including the Trading Day immediately prior to the initial Disclosure Delay Payment Date
or (2) with respect to each other Disclosure Delay Payment Date, during the period commencing the immediately preceding Disclosure
Delay Payment Date through and including the Trading Day immediately prior to such applicable Disclosure Delay Payment Date (such applicable
period, the “Disclosure Restitution Period”).
(3) “Required
Disclosure Date” means (x) if such Buyer authorized the delivery of such Confidential Information, either (I) if
the Company and such Buyer have mutually agreed upon a date (as evidenced by an e-mail or other writing) of Disclosure of such Confidential
Information, such agreed upon date or (II) otherwise, the seventh (7th) calendar day after the date such Buyer first
received any Confidential Information or (y) if such Buyer did not authorize the delivery of such Confidential Information, the
first (1st) Business Day after such Buyer’s receipt of such Confidential Information.
(j) Additional
Registration Statements. Until the Applicable Date (as defined below) and at any time thereafter while any Registration Statement
is not effective or the prospectus contained therein is not available for use or any Current Public Information Failure (as defined in
the Registration Rights Agreement) exists, the Company shall not file a registration statement or an offering statement under the 1933
Act relating to securities that are not the Registrable Securities (other than a registration statement on Form S-8 or such supplements
or amendments to registration statements that are outstanding and have been declared effective by the SEC as of the date hereof (solely
to the extent necessary to keep such registration statements effective and available and not with respect to any Subsequent Placement)).
“Applicable Date” means the earlier of (x) the first date on which the resale by the Buyers of all the Registrable
Securities required to be filed on the initial Registration Statement (as defined in the Registration Rights Agreement) pursuant to the
Registration Rights Agreement is declared effective by the SEC (and each prospectus contained therein is available for use on such date)
or (y) the first date on which all of the Registrable Securities then outstanding are eligible to be resold by the Buyers pursuant
to Rule 144 (or, if a Current Public Information Failure has occurred and is continuing, such later date after which the Company
has cured such Current Public Information Failure).
(k) Additional
Issuance of Securities. During the period commencing on the date hereof and ending on the later of (x) the date no Notes remain
outstanding and (y) the Additional Optional Closing Expiration Date, the Company will not, without the prior written consent of
the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities
that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period (x) commencing on the
date hereof and ending on the date immediately following the 60th Trading Day after the Applicable Date (provided that such
period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on
which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public
Information Failure exists) and (y) each trailing 60 Trading Day period commencing on, and including, each Trading Day immediately
following a Closing Date hereunder (each, a “Restricted Period”), neither the Company nor any of its Subsidiaries
shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance,
offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security
(including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the
1933 Act), any Convertible Securities (as defined below), any debt, any preferred shares or any purchase rights) (any such issuance,
offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred
to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect
of the issuance of (i) Ordinary Shares or standard options to purchase Ordinary Shares to directors, officers or employees of the
Company in their capacity as such pursuant to an Approved Share Plan (as defined below) or such agreements with such directors, officers
or employees of the Company existing as of the date of this Agreement, provided that (1) all such issuances (taking into account
the Ordinary Shares issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate,
exceed more than 5% of the Ordinary Shares issued and outstanding immediately prior to the date hereof and (2) the exercise price
of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of
the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers;
(ii) Ordinary Shares issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Ordinary
Shares issued pursuant to an Approved Share Plan or such agreements with such directors, officers or employees of the Company existing
as of the date of this Agreement that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion,
exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion,
exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately
prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard
options to purchase Ordinary Shares issued pursuant to an Approved Share Plan or such agreements with such directors, officers or employees
of the Company existing as of the date of this Agreement that are covered by clause (i) above) is not lowered, none of such Convertible
Securities (other than standard options to purchase Ordinary Shares issued pursuant to an Approved Share Plan or such agreements with
such directors, officers or employees of the Company existing as of the date of this Agreement that are covered by clause (i) above)
are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities
(other than standard options to purchase Ordinary Shares issued pursuant to an Approved Share Plan or such agreements with such directors,
officers or employees of the Company existing as of the date of this Agreement that are covered by clause (i) above) are otherwise
materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares, (iv) the Warrant Shares,
(v) securities issued in connection with any bona fide strategic or commercial alliances, acquisitions, mergers, licensing arrangements,
strategic transactions and strategic partnerships (including, without limitation, joint ventures, marketing or distribution arrangements,
collaboration agreements or intellectual property license agreements) approved by a majority of the disinterested directors of the Company,
provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration
rights that require or permit the filing of any registration statement in connection therewith during the Restricted Period, provided,
further, that (w) the primary purpose of such issuance is not to raise capital as reasonably determined by a majority of the disinterested
directors of the Company, and (x) the purchaser or acquirer or recipient of the securities in such issuance solely consists of either
(I) the actual participants in such strategic or commercial alliance, strategic or commercial licensing arrangement or strategic
or commercial partnership, (II) the actual owners of such assets or securities acquired in such acquisition or merger or (III) the
shareholders, partners, employees, consultants, officers, directors or members of the foregoing Persons, in each case, which is, itself
or through its subsidiaries, an operating company or an owner of an asset, in a business synergistic with the business of the Company
and shall provide to the Company additional benefits in addition to the investment of funds, (y) the number or amount of securities
issued to such Persons by the Company shall not be disproportionate to each such Person’s actual participation in (or fair market
value of the contribution to) such strategic or commercial alliance or strategic or commercial partnership or ownership of such assets
or securities to be acquired by the Company, as applicable and (z) the aggregate number of Ordinary Shares issued (or issuable upon
conversion or exercise of Convertible Securities or Options, as applicable) pursuant to this clause (v), in the aggregate, shall not
exceed thirty percent (30%) of the total number of outstanding Ordinary Shares immediately following the issuance and sale of the Securities
pursuant hereto, and (vi) the issuance by the Company of 2,812,833 Ordinary Shares pursuant to securities purchase agreements entered
into with investors on November 7, 2023 and November 9, 2023, respectively, for gross proceeds of $3,994,222, in reliance upon
an exemption from the registration requirements of the Section 5 of the 1933 Act (each of the foregoing in clauses (i) through
(vi), collectively the “Excluded Securities”). “Approved Share Plan” means any employee benefit
plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which Ordinary
Shares and standard options to purchase Ordinary Shares may be issued to any employee, officer or director for services provided to the
Company in their capacity as such.
(l) Reservation
of Shares. Within ninety (90) calendar days from and after the Initial Closing Date and for so long as any of the Notes or Warrants
remain outstanding, the Company shall take all action necessary to have authorized, and reserved for the purpose of issuance, at all
times, no less than the sum of (i) the maximum number of Ordinary Shares issuable upon conversion of all the Notes then outstanding
(assuming for purposes hereof that (w) all Additional Notes issuable hereunder shall have been issued at an Additional Closing on
the Initial Closing Date, (x) the Notes are convertible at the Floor Price as of such applicable date of determination, (y) interest
on the Notes shall accrue through the third anniversary of the Initial Closing Date and will be converted in Ordinary Shares at a conversion
price equal to the Floor Price as of such applicable date of determination and (z) any such conversion shall not take into account
any limitations on the conversion of the Notes set forth in the Notes), and (ii) 116% of the maximum number of Warrant Shares issuable
upon exercise of all the Warrants then outstanding (without regard to any limitations on the exercise of the Warrants set forth therein
but assuming that all Additional Notes issuable hereunder shall have been issued at an Additional Closing on the Initial Closing Date
(and all adjustments to the Warrants upon the occurrence of such Additional Closing shall have occurred in accordance with the terms
thereof)) (collectively, the “Required Reserve Amount”); provided that at no time shall the number of Ordinary Shares
reserved pursuant to this Section 4(l) be reduced other than proportionally in connection with any conversion, exercise and/or
redemption, as applicable of Notes and Warrants. If at any time the number of Ordinary Shares authorized and reserved for issuance is
not sufficient to meet the Required Reserve Amount, the Company will promptly take all corporate action necessary to authorize and reserve
a sufficient number of shares, including, without limitation, calling a special meeting of shareholders to authorize additional shares
to meet the Company’s obligations pursuant to the Transaction Documents, in the case of an insufficient number of authorized shares,
obtain shareholder approval of an increase in such authorized number of shares, and voting the management shares of the Company in favor
of an increase in the authorized shares of the Company to ensure that the number of authorized shares is sufficient to meet the Required
Reserve Amount. Notwithstanding anything herein or in the Notes or Warrants to the contrary, any Investor may allocate its Required Reserve
Amount to any other security held by such Investor by delivery of written notice to the Company, which may be an e-mail.
(m) Conduct
of Business. The business of the Company and its Subsidiaries shall not be conducted in violation of any law, ordinance or regulation
of any Governmental Entity, except where such violations would not reasonably be expected to result, either individually or in the aggregate,
in a Material Adverse Effect.
(n) Other
Notes; Variable Securities. From the date hereof until the earlier of (i) a period of 12 months after the Initial Closing Date
and (ii) the Notes are no longer outstanding, the Company and each Subsidiary shall be prohibited from effecting or entering into
an agreement to effect any Subsequent Placement involving a Variable Rate Transaction. “Variable Rate Transaction”
means a transaction in which the Company or any Subsidiary (i) issues or sells any Convertible Securities either (A) at a conversion,
exercise or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the Ordinary Shares
at any time after the initial issuance of such Convertible Securities, or (B) with a conversion, exercise or exchange price that
is subject to being reset at some future date after the initial issuance of such Convertible Securities or upon the occurrence of specified
or contingent events directly or indirectly related to the business of the Company or the market for the Ordinary Shares, other than
pursuant to a customary “weighted average” anti-dilution provision or (ii) enters into any agreement (including, without
limitation, an equity line of credit or an “at-the-market” offering) whereby the Company or any Subsidiary may sell securities
at a future determined price (other than standard and customary “preemptive” or “participation” rights). Each
Buyer shall be entitled to obtain injunctive relief against the Company and its Subsidiaries to preclude any such issuance, which remedy
shall be in addition to any right to collect damages.
(o) Participation
Right. At any time on or prior to the first anniversary of the Initial Closing Date, neither the Company nor any of its Subsidiaries
shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4(o).
The Company acknowledges and agrees that the right set forth in this Section 4(o) is a right granted by the Company, separately,
to each Buyer.
(i) At
least one (1) Trading Day prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Buyer a written
notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without
limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains
material, non-public information, a statement asking whether the Investor is willing to accept material non-public information or (B) if
the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes
or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material,
non-public information and (z) a statement informing such Buyer that it is entitled to receive an Offer Notice (as defined below)
with respect to such Subsequent Placement upon its written request. Upon the written request of a Buyer within one (1) Trading Day
after the Company’s delivery to such Buyer of such Pre-Notice, and only upon a written request by such Buyer, the Company shall
promptly, but no later than one (1) Trading Day after such request, deliver to such Buyer an irrevocable written notice (the “Offer
Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being
offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe
the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number
or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which
the Offered Securities are to be offered, issued, sold or exchanged and (D) offer to issue and sell to or exchange with such Buyer
in accordance with the terms of the Offer such Buyer’s pro rata portion of 15% of the Offered Securities, provided that the number
of Offered Securities which such Buyer shall have the right to subscribe for under this Section 4(o) shall be (x) based
on such Buyer’s pro rata portion of the aggregate original principal amount of the Notes purchased hereunder by all Buyers (the
“Basic Amount”), and (y) with respect to each Buyer that elects to purchase its Basic Amount, any additional
portion of the Offered Securities attributable to the Basic Amounts of other Buyers as such Buyer shall indicate it will purchase or
acquire should the other Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which
process shall be repeated until each Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(ii) To
accept an Offer, in whole or in part, such Buyer must deliver a written notice to the Company prior to the end of the first (1st) Business
Day after such Buyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Buyer’s
Basic Amount that such Buyer elects to purchase and, if such Buyer shall elect to purchase all of its Basic Amount, the Undersubscription
Amount, if any, that such Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts
subscribed for by all Buyers are less than the total of all of the Basic Amounts, then each Buyer who has set forth an Undersubscription
Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription
Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total
of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Buyer
who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription
Amount as the Basic Amount of such Buyer bears to the total Basic Amounts of all Buyers that have subscribed for Undersubscription Amounts,
subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires
to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each
Buyer a new Offer Notice and the Offer Period shall expire on the first (1st) Business Day after such Buyer’s receipt of such new
Offer Notice.
(iii) The
Company shall have ten (10) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange
all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Buyer (the “Refused Securities”)
pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described
in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest
rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer
Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the
consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent
Placement Agreement, which shall be filed with the SEC on a Report of Foreign Issuer on Form 6-K with such Subsequent Placement
Agreement and any documents contemplated therein filed as exhibits thereto.
(iv) In
the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms
specified in Section 4(o)(iii) above), then each Buyer may, at its sole option and in its sole discretion, withdraw its Notice
of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall
be not less than the number or amount of the Offered Securities that such Buyer elected to purchase pursuant to Section 4(o)(ii) above
multiplied by a fraction, (i) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes
to issue, sell or exchange (including Offered Securities to be issued or sold to Buyers pursuant to this Section 4(o) prior
to such reduction) and (ii) the denominator of which shall be the original amount of the Offered Securities. In the event that any
Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue,
sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered
to the Buyers in accordance with Section 4(o)(i) above.
(v) Upon
the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Buyer shall acquire from the Company,
and the Company shall issue to such Buyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced
pursuant to Section 4(o)(iv) above if such Buyer has so elected, upon the terms and conditions specified in the Offer. The
purchase by such Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and
such Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such
Buyer and its counsel.
(vi) Any
Offered Securities not acquired by a Buyer or other Persons in accordance with this Section 4(o) may not be issued, sold or
exchanged until they are again offered to such Buyer under the procedures specified in this Agreement.
(vii) The
Company and each Buyer agree that if any Buyer elects to participate in the Offer, (x) neither the Subsequent Placement Agreement
with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”)
shall include any term or provision whereby such Buyer shall be required to agree to any restrictions on trading as to any securities
of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in
connection with, any agreement previously entered into with the Company or any instrument received from the Company, (y) representation
and warranties of an Investor in the Subsequent Placement Documents shall not be more restrictive than those of the Buyers in this Agreement
(other than such changes as necessary to comply with applicable law, rules and regulations, the manner of sale of such security
in such Subsequent Placement and/or the type of such security to be sold in such Subsequent Placement) and (z) any registration
rights set forth in such Subsequent Placement Documents shall be similar in all material respects to the registration rights contained
in the Registration Rights Agreement.
(viii) Notwithstanding
anything to the contrary in this Section 4(o) and unless otherwise agreed to by such Buyer, the Company shall either confirm
in writing to such Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose
its intention to issue the Offered Securities, in either case, in such a manner such that such Buyer will not be in possession of any
material, non-public information, by the tenth (10th) Business Day following delivery of the Offer Notice. If by such tenth
(10th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and
no notice regarding the abandonment of such transaction has been received by such Buyer, such transaction shall be deemed to have been
abandoned and such Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its
Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide
such Buyer with another Offer Notice and such Buyer will again have the right of participation set forth in this Section 4(o). The
Company shall not be permitted to deliver more than one such Offer Notice to such Buyer in any thirty (30) day period, except as expressly
contemplated by the last sentence of Section 4(o)(ii).
(ix) The
restrictions contained in this Section 4(o) shall not apply in connection with the issuance of any Excluded Securities. The
Company shall not circumvent the provisions of this Section 4(o) by providing terms or conditions to one Buyer that are not
provided to all.
(p) Dilutive
Issuances. For so long as any Notes or Warrants remain outstanding, the Company shall not, in any manner, enter into or affect any
Dilutive Issuance (as defined in the Notes) if the effect of such Dilutive Issuance is to cause the Company to be required to issue upon
conversion of any Notes or exercise of any Warrant any Ordinary Shares in excess of that number of Ordinary Shares which the Company
may issue upon conversion of the Notes and exercise of the Warrants without breaching the Company’s obligations under the rules or
regulations of the Principal Market.
(q) Passive
Foreign Investment Company. The Company shall conduct its business, and shall cause its Subsidiaries to conduct their respective
businesses, in such a manner as will ensure that the Company will not be deemed to constitute a passive foreign investment company within
the meaning of Section 1297 of the Code.
(r) Restriction
on Redemption and Cash Dividends. So long as any Notes are outstanding, the Company shall not, directly or indirectly, redeem, or
declare or pay any cash dividend or distribution on, any securities of the Company without the prior express written consent of the Buyers.
(s) Corporate
Existence. So long as any Buyer beneficially owns any Notes or Warrants, the Company shall not be party to any Fundamental Transaction
(as defined in the Notes) unless the Company is in compliance with the applicable provisions governing Fundamental Transactions set forth
in the Notes and the Warrants.
(t) Share
Splits. Until the Notes and all notes issued pursuant to the terms thereof are no longer outstanding, the Company shall not effect
any share combination, reverse share split or other similar transaction (or make any public announcement or disclosure with respect to
any of the foregoing) without the prior written consent of the Required Holders (as defined below), except that prior written consent
of the Require Holders shall not be necessary, if such share combination, reverse share split or other similar transaction is for compliance
with continued listing requirements of the Principal Market or the Eligible Market the Ordinary Shares of the Company are then listed.
(u) Conversion
and Exercise Procedures. Each of the form of Exercise Notice (as defined in the Warrants) included in the Warrants and the form of
Conversion Notice (as defined in the Notes) included in the Notes set forth the totality of the procedures required of the Buyers in
order to exercise the Warrants or convert the Notes. Except as provided in Section 5(d), no additional legal opinion, other information
or instructions shall be required of the Buyers to exercise their Warrants or convert their Notes. The Company shall honor exercises
of the Warrants and conversions of the Notes and shall deliver the Conversion Shares and Warrant Shares in accordance with the terms,
conditions and time periods set forth in the Notes and Warrants.
(v) Collateral
Agent. Each Buyer hereby (i) appoints [ ], as the collateral agent hereunder and under the other Security Documents (in such
capacity, the “Collateral Agent”), and (ii) authorizes the Collateral Agent (and its officers, directors, employees
and agents) to take such action on such Buyer’s behalf in accordance with the terms hereof and thereof. The Collateral Agent shall
not have, by reason hereof or any of the other Security Documents, a fiduciary relationship in respect of any Buyer. Neither the Collateral
Agent nor any of its officers, directors, employees or agents shall have any liability to any Buyer for any action taken or omitted to
be taken in connection hereof or any other Security Document except to the extent caused by its own gross negligence or willful misconduct,
and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees
and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations,
penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs
and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection
with the performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or any of
the Security Documents. The Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required
to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Required
Holders, and such instructions shall be binding upon all holders of Notes; provided, however, that the Collateral Agent shall not be
required to take any action which, in the reasonable opinion of the Collateral Agent, exposes the Collateral Agent to liability or which
is contrary to this Agreement or any other Transaction Document or applicable law. The Collateral Agent shall be entitled to rely upon
any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be
genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement
or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it.
(w) Successor
Collateral Agent.
(i) The
Collateral Agent may resign from the performance of all its functions and duties hereunder and under the other Transaction Documents
at any time by giving at least ten (10) Business Days’ prior written notice to the Company and each holder of Notes. Such
resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment pursuant to clauses (ii) and (iii) below
or as otherwise provided below. If at any time the Collateral Agent (together with its affiliates) beneficially owns less than $100,000
in aggregate principal amount of Notes, the Required Holders may, by written consent, remove the Collateral Agent from all its functions
and duties hereunder and under the other Transaction Documents.
(ii) Upon
any such notice of resignation or removal, the Required Holders shall appoint a successor collateral agent. Upon the acceptance of any
appointment as Collateral Agent hereunder by a successor agent, such successor collateral agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the collateral agent, and the Collateral Agent shall be discharged from
its duties and obligations under this Agreement and the other Transaction Documents. After the Collateral Agent’s resignation or
removal hereunder as the collateral agent, the provisions of this Section 4(w) shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was the Collateral Agent under this Agreement and the other Transaction Documents.
(iii) If
a successor collateral agent shall not have been so appointed within ten (10) Business Days of receipt of a written notice of resignation
or removal, the Collateral Agent shall then appoint a successor collateral agent who shall serve as the Collateral Agent until such time,
if any, as the Required Holders appoint a successor collateral agent as provided above.
(iv) In
the event that a successor Collateral Agent is appointed pursuant to the provisions of this Section 4(w) that is not a Buyer
or an affiliate of any Buyer (or the Required Holders or the Collateral Agent (or its successor), as applicable, notify the Company that
they or it wants to appoint such a successor Collateral Agent pursuant to the terms of this Section 4(w)), the Company and each
Subsidiary thereof covenants and agrees to promptly take all actions reasonably requested by the Required Holders or the Collateral Agent
(or its successor), as applicable, from time to time, to secure a successor Collateral Agent satisfactory to the requesting part(y)(ies),
in their sole discretion, including, without limitation, by paying all reasonable and customary fees and expenses of such successor Collateral
Agent, by having the Company and each Subsidiary thereof agree to indemnify any successor Collateral Agent pursuant to reasonable and
customary terms and by each of the Company and each Subsidiary thereof executing a collateral agency agreement or similar agreement and/or
any amendment to the Security Documents reasonably requested or required by the successor Collateral Agent.
(x) Regulation
M. The Company will not take any action prohibited by Regulation M under the 1934 Act, in connection with the distribution of the
Securities contemplated hereby.
(y) General
Solicitation. None of the Company, any of its affiliates
(as defined in Rule 501(b) under the 1933 Act) or any person acting on behalf of the Company or such affiliate will solicit
any offer to buy or offer or sell the Securities by means of any form of general solicitation or general advertising within the meaning
of Regulation D, including: (i) any advertisement, article, notice or other communication published in any newspaper, magazine
or similar medium or broadcast over television or radio; and (ii) any seminar or meeting whose attendees have been invited by any
general solicitation or general advertising.
(z) Integration.
None of the Company, any of its affiliates (as defined in Rule 501(b) under the 1933 Act), or any person acting on behalf of
the Company or such affiliate will sell, offer for sale, or solicit offers to buy or otherwise negotiate in respect of any security (as
defined in the 1933 Act) which will be integrated with the sale of the Securities in a manner which would require the registration of
the Securities under the 1933 Act or require shareholder approval under the rules and regulations of the Principal Market and the
Company will take all action that is appropriate or necessary to assure that its offerings of other securities will not be integrated
for purposes of the 1933 Act or the rules and regulations of the Principal Market, with the issuance of Securities contemplated
hereby.
(aa) Notice
of Disqualification Events. The Company will notify the
Buyers in writing, prior to each Closing Date of (i) any Disqualification Event relating to any Issuer Covered Person and (ii) any
event that would, with the passage of time, become a Disqualification Event relating to any Issuer Covered Person.
(bb) Subsidiary
Guarantee. For so long as any Notes remain outstanding,
upon any entity becoming a direct, or indirect, Subsidiary of the Company, the Company shall cause each such Subsidiary to become party
to the Guaranty by executing a joinder to the Guaranty reasonably satisfactory in form and substance to the Required Holders.
(cc) No
Net Short Position. Each Buyer hereby agrees solely with
the Company, severally and not jointly, and not with any other Buyer, for so long as such Buyer owns any Notes, such Buyer shall not
maintain a Net Short Position (as defined below). For purposes hereof, a “Net Short Position” by a person means a
position whereby such person has executed one or more sales of Ordinary Shares that is marked as a short sale (but not including any
sale marked “short exempt”) and that is executed at a time when such Buyer has no equivalent offsetting long position in
the Ordinary Shares (or is deemed to have a long position hereunder or otherwise in accordance with Regulation SHO of the 1934 Act);
provided, that, for purposes of such calculations, any short sales either (x) consummated at a price greater than or equal to (A) the
Conversion Price, (y) that is a result of a bona-fide trading error on behalf of such Buyer (or its affiliates) or (z) that
would otherwise be marked as a “long” sale, but for the occurrence of a Conversion Failure (as defined in the Notes), a Delivery
Failure (as defined in the Warrants), an Equity Conditions Failure (as defined in the Notes) and/or any other breach by the Company (or
its affiliates or agents, including, without limitation, the Transfer Agent) of any Transaction Document, in each case, shall be excluded
from such calculations. For purposes of determining whether a Buyer has an equivalent offsetting “long” position in the Ordinary
Shares, (A) all Ordinary Shares that are owned by such Buyer shall be deemed held “long” by such Buyer, (B) all
Ordinary Shares that would be issuable upon conversion or exercise in full of all Securities issuable to such Buyer or then held by such
Buyer, as applicable (assuming that such Securities were then fully convertible or exercisable, notwithstanding any provisions to the
contrary, and giving effect to any conversion or exercise price adjustments that would take effect given only the passage of time) shall
be deemed to be held long by such Buyer, and (C) at any other time the Company is required (or has elected (or is deemed to have
elected)) to issue Ordinary Shares to such Buyer pursuant to the terms of the Notes and/or the Warrants, as applicable, any Ordinary
Shares issued or issuable to such Buyer (or its designee, if applicable) in connection therewith shall be deemed held “long”
by such Buyer from and after the date that is two (2) Trading Days prior to the deadline for delivery of such Ordinary Shares to
such Buyer, as set forth in the Notes and/or the Warrants, as applicable, until such time as such Buyer shall no longer beneficially
own such Ordinary Shares.
(dd) Shareholder
Approval. The Company shall either (x) if the Company
shall have obtained the prior written consent of the requisite shareholders (the “Shareholder Consent”) to obtain
the Shareholder Approval (as defined below), inform the shareholders of the Company of the receipt of the Shareholder Consent by preparing
and filing with the SEC, as promptly as practicable after the date hereof, but prior to the forty-fifth (45th) calendar day
after the Initial Closing Date (or, if such filing is delayed by a court or regulatory agency, in no event later than ninety (90) calendar
days after the Initial Closing Date), an information statement with respect thereto or (y) provide each shareholder entitled to
vote at a special meeting of shareholders of the Company (the “Shareholder Meeting”), which shall be promptly called
and held not later than the seventy-fifth (75th) calendar day after the Initial Closing Date (the “Shareholder Meeting
Deadline”), a proxy statement, in each case, in a form reasonably acceptable to the Buyers and Kelley Drye & Warren
LLP, at the expense of the Company. The proxy statement, if any, shall solicit each of the Company’s shareholder’s affirmative
vote at the Shareholder Meeting for approval of resolutions (“Shareholder Resolutions”) providing for the increase
of the authorized Ordinary Shares of the Company from 10,000,000 to 250,000,000 (such affirmative approval being referred to herein as
the “Shareholder Approval”, and the date such Shareholder Approval is obtained, the “Shareholder Approval
Date”), and the Company shall use its reasonable best efforts to solicit its shareholders’ approval of such resolutions
and to cause the Board of Directors of the Company to recommend to the shareholders that they approve such resolutions. The Company shall
be obligated to seek to obtain the Shareholder Approval by the Shareholder Meeting Deadline. If, despite the Company’s reasonable
best efforts the Shareholder Approval is not obtained on or prior to the Shareholder Meeting Deadline, the Company shall cause an additional
Shareholder Meeting to be held on or prior to the one hundred and twentieth (120th) calendar day after the Initial Closing
Date. If, despite the Company’s reasonable best efforts the Shareholder Approval is not obtained after such subsequent shareholder
meetings, the Company shall cause an additional Shareholder Meeting to be held semi-annually thereafter until such Shareholder Approval
is obtained.
(gg) Closing
Documents. On or prior to fourteen (14) calendar
days after each Closing Date, the Company agrees to deliver, or cause to be delivered, to each Buyer and Kelley Drye & Warren
LLP a complete closing set of the executed Transaction Documents, Securities and any other document required to be delivered to any party
pursuant to Section 7 hereof or otherwise.
5. REGISTER;
TRANSFER AGENT INSTRUCTIONS; LEGEND.
(a) Register.
The Company shall maintain at its principal executive offices (or such other office or agency of the Company as it may designate by notice
to each holder of Securities), a register for the Notes and the Warrants in which the Company shall record the name and address of the
Person in whose name the Notes and the Warrants have been issued (including the name and address of each transferee), the principal amount
of the Notes held by such Person, the number of Conversion Shares issuable pursuant to the terms of the Notes and the number of Warrant
Shares issuable upon exercise of the Warrants held by such Person. The Company shall keep the register open and available at all times
during business hours for inspection of any Buyer or its legal representatives.
(b) Transfer
Agent Instructions. The Company shall issue irrevocable instructions to its transfer agent and any subsequent transfer agent (as
applicable, the “Transfer Agent”) in a form acceptable to each of the Buyers (the “Irrevocable Transfer Agent
Instructions”) to issue certificates or credit shares to the applicable balance accounts at The Depository Trust Company (“DTC”),
registered in the name of each Buyer or its respective nominee(s), for the Conversion Shares and the Warrant Shares in such amounts as
specified from time to time by each Buyer to the Company upon conversion of the Notes or the exercise of the Warrants (as the case may
be). The Company represents and warrants that no instruction other than the Irrevocable Transfer Agent Instructions referred to in this
Section 5(b), and stop transfer instructions to give effect to Section 2(g) hereof, will be given by the Company to its
transfer agent with respect to the Securities, and that the Securities shall otherwise be freely transferable on the books and records
of the Company, as applicable, to the extent provided in this Agreement and the other Transaction Documents. If a Buyer effects a sale,
assignment or transfer of the Securities in accordance with Section 2(g), the Company shall permit the transfer and shall promptly
instruct its transfer agent to issue one or more certificates or credit shares to the applicable balance accounts at DTC in such name
and in such denominations as specified by such Buyer to effect such sale, transfer or assignment. In the event that such sale, assignment
or transfer involves Conversion Shares or Warrant Shares sold, assigned or transferred pursuant to an effective registration statement
or in compliance with Rule 144, the transfer agent shall issue such shares to such Buyer, assignee or transferee (as the case may
be) without any restrictive legend in accordance with Section 5(d) below. The Company acknowledges that a breach by it of its
obligations hereunder will cause irreparable harm to a Buyer. Accordingly, the Company acknowledges that the remedy at law for a breach
of its obligations under this Section 5(b) will be inadequate and agrees, in the event of a breach or threatened breach by
the Company of the provisions of this Section 5(b), that a Buyer shall be entitled, in addition to all other available remedies,
to an order and/or injunction restraining any breach and requiring immediate issuance and transfer, without the necessity of showing
economic loss and without any bond or other security being required. The Company shall cause its counsel to issue the legal opinion referred
to in the Irrevocable Transfer Agent Instructions to the Company’s transfer agent on each Effective Date (as defined in the Registration
Rights Agreement). Any fees (with respect to the transfer agent, counsel to the Company or otherwise) associated with the issuance of
such opinion or the removal of any legends on any of the Securities shall be borne by the Company.
(c) Legends.
Each Buyer understands that the Securities have been issued (or will be issued in the case of the Conversion Shares and the Warrant Shares)
pursuant to an exemption from registration or qualification under the 1933 Act and applicable state securities laws, and except as set
forth below, the Securities shall bear any legend as required by the “blue sky” laws of any state and a restrictive legend
in substantially the following form (and a stop-transfer order may be placed against transfer of such share certificates):
[NEITHER
THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE [CONVERTIBLE]
[EXERCISABLE] HAVE BEEN][THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN] REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN
THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN
OPINION OF COUNSEL TO THE HOLDER (IF REQUESTED BY THE COMPANY), IN A FORM REASONABLY ACCEPTABLE TO THE COMPANY, THAT REGISTRATION
IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD OR ELIGIBLE TO BE SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING
THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT
SECURED BY THE SECURITIES.
(d) Removal
of Legends. Certificates evidencing Securities shall not be required to contain the legend set forth in Section 5(c) above
or any other legend (i) while a registration statement (including a Registration Statement) covering the resale of such Securities
is effective under the 1933 Act, (ii) following any sale of such Securities pursuant to Rule 144 (assuming the transferor is
not an affiliate of the Company), (iii) if such Securities are eligible to be sold, assigned or transferred under Rule 144
(provided that a Buyer provides the Company with reasonable assurances that such Securities are eligible for sale, assignment or transfer
under Rule 144 which shall not include an opinion of Buyer’s counsel), (iv) in connection with a sale, assignment or
other transfer (other than under Rule 144), provided that such Buyer provides the Company with an opinion of counsel to such Buyer,
in a generally acceptable form, to the effect that such sale, assignment or transfer of the Securities may be made without registration
under the applicable requirements of the 1933 Act or (v) if such legend is not required under applicable requirements of the 1933
Act (including, without limitation, controlling judicial interpretations and pronouncements issued by the SEC). If a legend is not required
pursuant to the foregoing, the Company shall no later than two (2) Trading Days (or such earlier date as required pursuant to the
1934 Act or other applicable law, rule or regulation for the settlement of a trade initiated on the date such Buyer delivers such
legended certificate representing such Securities to the Company) following the delivery by a Buyer to the Company or the transfer agent
(with notice to the Company) of a legended certificate representing such Securities (endorsed or with share powers attached, signatures
guaranteed, and otherwise in form necessary to affect the reissuance and/or transfer, if applicable), together with any other deliveries
from such Buyer as may be required above in this Section 5(d), as directed by such Buyer, either: (A) provided that the Company’s
transfer agent is participating in the DTC Fast Automated Securities Transfer Program (“FAST”) and such Securities
are Conversion Shares or Warrant Shares, credit the aggregate number of Ordinary Shares to which such Buyer shall be entitled to such
Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal at Custodian system or (B) if the
Company’s transfer agent is not participating in FAST, issue and deliver (via reputable overnight courier) to such Buyer, a certificate
representing such Securities that is free from all restrictive and other legends, registered in the name of such Buyer or its designee
(the date by which such credit is so required to be made to the balance account of such Buyer’s or such Buyer’s designee
with DTC or such certificate is required to be delivered to such Buyer pursuant to the foregoing is referred to herein as the “Required
Delivery Date”, and the date such Ordinary Shares are actually delivered without restrictive legend to such Buyer or such Buyer’s
designee with DTC, as applicable, the “Share Delivery Date”). The Company shall be responsible for any transfer agent
fees or DTC fees with respect to any issuance of Securities or the removal of any legends with respect to any Securities in accordance
herewith.
(e) Failure
to Timely Deliver; Buy-In. If the Company fails, for any reason or for no reason, to issue and deliver (or cause to be delivered)
to a Buyer (or its designee) by the Required Delivery Date, either (I) if the Transfer Agent is not participating in FAST, a certificate
for the number of Conversion Shares or Warrant Shares (as the case may be) to which such Buyer is entitled and register such Conversion
Shares or Warrant Shares (as the case may be) on the Company’s share register or, if the Transfer Agent is participating in FAST,
to credit the balance account of such Buyer or such Buyer’s designee with DTC for such number of Conversion Shares or Warrant Shares
(as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above or (II) if the Registration
Statement covering the resale of the Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer
pursuant to Section 5(d) above (the “Unavailable Shares”) is not available for the resale of such Unavailable
Shares and the Company fails to promptly, but in no event later than as required pursuant to the Registration Rights Agreement (x) so
notify such Buyer and (y) deliver the Conversion Shares or Warrant Shares, as applicable, electronically without any restrictive
legend by crediting such aggregate number of Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by
such Buyer pursuant to Section 5(d) above to such Buyer’s or its designee’s balance account with DTC through its
Deposit/Withdrawal At Custodian system (the event described in the immediately foregoing clause (II) is hereinafter referred as
a “Notice Failure” and together with the event described in clause (I) above, a “Delivery Failure”),
then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Share
Delivery Date and during such Delivery Failure an amount equal to 2% of the product of (A) the sum of the number of Ordinary Shares
not issued to such Buyer on or prior to the Required Delivery Date and to which such Buyer is entitled, and (B) any trading price
of the Ordinary Shares selected by such Buyer in writing as in effect at any time during the period beginning on the date of the delivery
by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) and ending on the applicable
Share Delivery Date. In addition to the foregoing, if on or prior to the Required Delivery Date either (I) if the Transfer Agent
is not participating in FAST, the Company shall fail to issue and deliver a certificate to a Buyer and register such Ordinary Shares
on the Company’s share register or, if the Transfer Agent is participating in FAST, credit the balance account of such Buyer or
such Buyer’s designee with DTC for the number of Ordinary Shares to which such Buyer submitted for legend removal by such Buyer
pursuant to Section 5(d) above (ii) below or (II) a Notice Failure occurs, and if on or after such Trading Day such
Buyer purchases (in an open market transaction or otherwise) Ordinary Shares to deliver in satisfaction of a sale by such Buyer of Ordinary
Shares submitted for legend removal by such Buyer pursuant to Section 5(d) above that such Buyer is entitled to receive from
the Company (a “Buy-In”), then the Company shall, within two (2) Trading Days after such Buyer’s request
and in such Buyer’s discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase
price (including brokerage commissions and other out-of-pocket expenses, if any, for the Ordinary Shares so purchased) (the “Buy-In
Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyer’s balance
account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a
certificate or certificates or credit the balance account of such Buyer or such Buyer’s designee with DTC representing such number
of Ordinary Shares that would have been so delivered if the Company timely complied with its obligations hereunder and pay cash to such
Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Conversion
Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date multiplied
by (B) the lowest Closing Sale Price (as defined in the Warrants) of the Ordinary Shares on any Trading Day during the period commencing
on the date of the delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) and
ending on the date of such delivery and payment under this clause (ii). Nothing shall limit such Buyer’s right to pursue any other
remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive
relief with respect to the Company’s failure to timely deliver certificates representing Ordinary Shares (or to electronically
deliver such Ordinary Shares) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect
to any given Notice Failure and/or Delivery Failure, this Section 5(e) shall not apply to the applicable Buyer the extent the
Company has already paid such amounts in full to such Buyer with respect to such Notice Failure and/or Delivery Failure, as applicable,
pursuant to the analogous sections of the Note or Warrant, as applicable, held by such Buyer.
(f) FAST
Compliance. While any Warrants remain outstanding, the Company shall maintain a transfer agent that participates in FAST.
6. CONDITIONS
TO THE COMPANY’S OBLIGATION TO SELL.
(a) The
obligation of the Company hereunder to issue and sell the Initial Notes and the related Warrants to each Buyer at the Initial Closing
is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions
are for the Company’s sole benefit and may be waived by the Company at any time in its sole discretion by providing each Buyer
with prior written notice thereof:
(i) Such
Buyer shall have executed each of the other Transaction Documents to which it is a party and delivered the same to the Company.
(ii) Such
Buyer and each other Buyer shall have delivered to the Company the Initial Purchase Price (less, in the case of any Buyer, the amounts
withheld pursuant to Section 4(g)) for the Initial Note and the related Warrants being purchased by such Buyer at the Initial Closing
by wire transfer of immediately available funds in accordance with the Initial Flow of Funds Letter (as defined below).
(iii) The
representations and warranties of such Buyer shall be true and correct in all material respects as of the date when made and as of the
Initial Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date,
which shall be true and correct as of such specific date), and such Buyer shall have performed, satisfied and complied in all material
respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by such
Buyer at or prior to the Initial Closing Date.
(b) The
obligation of the Company hereunder to issue and sell an Additional Note to an applicable Buyer at an Additional Closing is subject to
the satisfaction, at or before such applicable Additional Closing Date, of each of the following conditions, provided that these conditions
are for the Company’s sole benefit and may be waived by the Company at any time in its sole discretion by providing such applicable
Buyer with prior written notice thereof:
(i) Such
Buyer shall have executed each of the other Transaction Documents to which it is a party and delivered the same to the Company.
(ii) Such
Buyer shall have delivered to the Company the Additional Purchase Price (less, in the case of such Buyer, the amounts withheld pursuant
to Section 4(g)) for the Additional Note being purchased by such Buyer at such Additional Closing by wire transfer of immediately
available funds in accordance with the Additional Flow of Funds Letter (as defined below).
(iii) The
representations and warranties of such Buyer shall be true and correct in all material respects as of the date when made and as of such
Additional Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific
date, which shall be true and correct as of such specific date), and such Buyer shall have performed, satisfied and complied in all material
respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by such
Buyer at or prior to such Additional Closing Date.
7. CONDITIONS
TO EACH BUYER’S OBLIGATION TO PURCHASE.
(a) The
obligation of each Buyer hereunder to purchase its Initial Note and its related Warrants at the Initial Closing is subject to the satisfaction,
at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer’s
sole benefit and may be waived by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:
(i) The
Company and each Subsidiary (as the case may be) shall have duly executed and delivered to such Buyer each of the Transaction Documents
to which it is a party and the Company shall have duly executed and delivered to such Buyer (A) an Initial Note in such original
principal amount as is set forth across from such Buyer’s name in column (3) of the Schedule of Buyers and (B) a Warrant
initially exercisable for such aggregate number of Warrant Shares as is set forth across from such Buyer’s name in column (5) of
the Schedule of Buyers, in each case, as being purchased by such Buyer at the Initial Closing pursuant to this Agreement.
(ii) Such
Buyer shall have received the legal opinion with respect to matters of Cayman Islands law of Mourant Ozannes (Cayman) LLP, the Company’s
Cayman Islands legal counsel, and the legal opinion with respect to matters of U.S. law of Ortoli Rosenstadt LLP, the Company’s
United States counsel, each dated as of the Initial Closing Date, in the form acceptable to such Buyer.
(iii) The
Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, in the form acceptable to such Buyer,
which instructions shall have been delivered to and acknowledged in writing by the Company’s transfer agent.
(iv) The
Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company and each of its Subsidiaries
in each such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction of
formation as of a date within ten (10) days of the Initial Closing Date.
(v) The
Company shall have delivered to such Buyer a certificate evidencing the Company’s and each Subsidiary’s qualification as
a foreign corporation and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Company
and each Subsidiary conducts business and is required to so qualify, as of a date within ten (10) days of the Initial Closing Date.
(vi) The
Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation as issued by the Cayman Islands Registry
of Companies within ten (10) days of the Initial Closing Date.
(vii) Each
Subsidiary shall have delivered to such Buyer a certified copy of its certificate of incorporation (or such equivalent organizational
document) as certified by the Secretary of State (or comparable office) of such Subsidiary’s jurisdiction of incorporation within
ten (10) days of the Initial Closing Date.
(viii) The
Company and each Subsidiary shall have delivered to such Buyer a certificate, in the form acceptable to such Buyer, executed by the Secretary
or the Chief Financial Officer of the Company and each Subsidiary and dated as of the Initial Closing Date, as to (i) the resolutions
consistent with Section 3(b) as adopted by the Company’s and each Subsidiary’s board of directors in a form reasonably
acceptable to such Buyer, (ii) the certificate of incorporation, as amended, of the Company and the organizational documents of
each Subsidiary and (iii) the Memorandum and Articles of Association of the Company and the bylaws (or equivalent governing document)
of each Subsidiary, each as in effect at the Initial Closing.
(ix) Each
and every representation and warranty of the Company shall be true and correct as of the date when made and as of the Initial Closing
Date as though originally made at that time (except for representations and warranties that speak as of a specific date, which shall
be true and correct as of such specific date) and the Company shall have performed, satisfied and complied in all respects with the covenants,
agreements and conditions required to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date.
Such Buyer shall have received a certificate, duly executed by the Chief Executive Officer of the Company, dated as of the Initial Closing
Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer in the form acceptable to such
Buyer.
(x) The
Company shall have delivered to such Buyer a letter from the Company’s transfer agent certifying the number of Ordinary Shares
outstanding on the Initial Closing Date immediately prior to the Initial Closing.
(xi) The
Ordinary Shares (A) shall be designated for quotation or listed (as applicable) on the Principal Market and (B) except as otherwise
disclosed in the SEC Documents with respect to the Principal Market, shall not have been suspended, as of the Initial Closing Date, by
the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been
threatened, as of the Initial Closing Date, either (I) in writing by the SEC or the Principal Market or (II) by falling below
the minimum maintenance requirements of the Principal Market.
(xii) The
Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the
Securities, including without limitation, those required by the Principal Market, if any.
(xiii) No
statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by
any court or Governmental Entity of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by
the Transaction Documents.
(xiv) Since
the date of execution of this Agreement, no event or series of events shall have occurred that reasonably would have or result in a Material
Adverse Effect.
(xv) The
Company shall have obtained approval of the Principal Market to list or designate for quotation (as the case may be) the Initial Conversion
Shares and the Warrant Shares.
(xvi) In
accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent (A) original certificates
(if any) (I) representing the Subsidiaries’ shares of share capital to the extent such subsidiary is a corporation or otherwise
has certificated equity and (II) representing all other equity interests and all promissory notes required to be pledged thereunder,
in each case, accompanied by undated share powers and allonges executed in blank and other proper instruments of transfer and (B) appropriate
financing statements on Form UCC-1 to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral
Agent, desirable to perfect the security interests purported to be created by each Security Document (the “Perfection Certificate”).
(xvii) Within
two (2) Business Days prior to the Initial Closing, the Company shall have delivered or caused to be delivered to each Buyer and
the Collateral Agent (A) certified copies of requests for copies of information on Form UCC-11, listing all effective financing
statements which name as debtor the Company or any of its Subsidiaries and which are filed in such office or offices as may be necessary
or, in the opinion of the Collateral Agent or the Buyers, desirable to perfect the security interests purported to be created by the
Security Agreement, together with copies of such financing statements, none of which, except as otherwise agreed in writing by the Collateral
Agent, shall cover any of the Collateral (as defined in the Security Agreement), and the results of searches for any tax Lien and judgment
Lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent and the
Buyers, shall not show any such Liens; and (B) a perfection certificate, duly completed and executed by the Company and each of
its Subsidiaries, in form and substance satisfactory to the Buyers.
(xviii) The
Collateral Agent shall have received the Security Agreement, duly executed by the Company and each of its Subsidiaries, together with
the original share certificates representing all of the equity interests and all promissory notes required to be pledged thereunder,
accompanied by undated share powers and allonges executed in blank and other proper instruments of transfer.
(xix) With
respect to the Intellectual Property Rights, if any, of the Company or any of its Subsidiaries, the Company and/or such Subsidiaries,
as applicable, shall have duly executed and delivered to such Buyer each Assignment For Security for the Intellectual Property Rights
of the Company and its Subsidiaries, in the form attached as Exhibit A to the Security Agreement.
(xx) The
Second Amended and Restated Limited Liability Company Agreement of the New LLC shall have been duly executed and delivered by the parties
thereto.
(xxi) The
Controlled Account Agreement (as defined in the Security Agreement) with respect to the Controlled Account (as defined in the Security
Agreement) of the New LLC, shall have been duly executed and delivered by the parties thereto
(xxii) [
] shall have contributed $1,454,600 to the New LLC.
(xxiii) Such
Buyer shall have received a letter on the letterhead of the Company (the “Initial Flow of Funds Letter”) duly executed
by the Chief Executive Officer of the Company, setting forth the wire amounts of each Buyer and the wire transfer instructions of the
Company (including, without limitation, the deposit of $5,645,400 for consummation of the Contribution).
(xxiv) The
Company shall have delivered to such Buyers (or made available through the EDGAR system) the audited financial statements of the Company
and its Subsidiaries for the fiscal year ended June 30, 2023.
(xxv) The
Company and its Subsidiaries shall have delivered to such Buyer such other documents, instruments or certificates relating to the transactions
contemplated by this Agreement as such Buyer or its counsel may reasonably request.
(b) The
obligation of any given Buyer hereunder to purchase its Additional Note at an Additional Closing is subject to the satisfaction, at or
before such applicable Additional Closing Date, of each of the following conditions, provided that these conditions are for such Buyer’s
sole benefit and may be waived by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:
(i) The
Company and each Subsidiary (as the case may be) shall have duly executed and delivered to such Buyer each of the Transaction Documents
to which it is a party and the Company shall have duly executed and delivered to such Buyer an Additional Note in such original principal
amount as is set forth across from such Buyer’s name in column (4) of the Schedule of Buyers as being purchased by such Buyer
at such Additional Closing pursuant to this Agreement.
(ii) Such
Buyer shall have received the legal opinion with respect to matters of Cayman Islands law of Mourant Ozannes (Cayman) LLP, the Company’s
Cayman Islands legal counsel, and the legal opinion with respect to matters of U.S. law of Ortoli Rosenstadt LLP, the Company’s
United States counsel, each dated as of such Additional Closing Date, in the form acceptable to such Buyer.
(iii) The
Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, in the form acceptable to such Buyer,
which instructions shall have been delivered to and acknowledged in writing by the Company’s transfer agent.
(iv) The
Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company and each of its Subsidiaries
in each such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction of
formation as of a date within ten (10) days of such Additional Closing Date.
(v) The
Company shall have delivered to such Buyer a certificate evidencing the Company’s and each Subsidiary’s qualification as
a foreign corporation and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Company
and each Subsidiary conducts business and is required to so qualify, as of a date within ten (10) days of such Additional Closing
Date.
(vi) The
Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation as certified by the Cayman Islands Registry
of Companies within ten (10) days of such Additional Closing Date.
(vii) Each
Subsidiary shall have delivered to such Buyer a certified copy of its certificate of incorporation (or such equivalent organizational
document) as certified by the Secretary of State (or comparable office) of such Subsidiary’s jurisdiction of incorporation within
ten (10) days of such Additional Closing Date.
(viii) The
Company and each Subsidiary shall have delivered to such Buyer a certificate, in the form acceptable to such Buyer, executed by the Secretary
or the Chief Financial Officer of the Company and each Subsidiary and dated as of such Additional Closing Date, as to (i) the resolutions
consistent with Section 3(b) as adopted by the Company’s and each Subsidiary’s board of directors in a form reasonably
acceptable to such Buyer, (ii) the certificate of incorporation, as amended, of the Company and the organizational documents of
each Subsidiary and (iii) the Memorandum and Articles of Association of the Company and the bylaws (or equivalent governing document)
of each Subsidiary, each as in effect at such Additional Closing.
(ix) Each
and every representation and warranty of the Company shall be true and correct as of the date when made and as of such Additional Closing
Date as though originally made at that time (except for representations and warranties that speak as of a specific date, which shall
be true and correct as of such specific date) and the Company shall have performed, satisfied and complied in all respects with the covenants,
agreements and conditions required to be performed, satisfied or complied with by the Company at or prior to such Additional Closing
Date. Such Buyer shall have received a certificate, duly executed by the Chief Executive Officer of the Company, dated as of such Additional
Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer in the form acceptable
to such Buyer.
(x) The
Company shall have delivered to such Buyer a letter from the Company’s transfer agent certifying the number of Ordinary Shares
outstanding on such Additional Closing Date immediately prior to such Additional Closing.
(xi) The
Ordinary Shares (A) shall be designated for quotation or listed (as applicable) on the Principal Market and (B) shall not have
been suspended, as of such Additional Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall
suspension by the SEC or the Principal Market have been threatened, as of such Additional Closing Date, either (I) in writing by
the SEC or the Principal Market or (II) by falling below the minimum maintenance requirements of the Principal Market.
(xii) The
Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the
Securities, including without limitation, those required by the Principal Market, if any.
(xiii) No
statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by
any court or Governmental Entity of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by
the Transaction Documents.
(xiv) Since
the date of execution of this Agreement, no event or series of events shall have occurred that reasonably would have or result in a Material
Adverse Effect.
(xv) The
Company shall have obtained approval of the Principal Market to list or designate for quotation (as the case may be) the Additional Conversion
Shares and the Warrant Shares.
(xvi) Such
Buyer shall have received a letter on the letterhead of the Company, duly executed by the Chief Executive Officer of the Company, setting
forth the wire amounts of each Buyer and the wire transfer instructions of the Company (the “Additional Flow of Funds Letter”,
and together with the Additional Flow of Funds Letter, each, a “Flow of Funds Letter”).
(xvii) The
Company and its Subsidiaries shall have delivered to such Buyer such other documents, instruments or certificates relating to the transactions
contemplated by this Agreement as such Buyer or its counsel may reasonably request.
8. TERMINATION.
In
the event that the Initial Closing shall not have occurred with respect to a Buyer within thirty (30) days of the date hereof, then such
Buyer shall have the right to terminate its obligations under this Agreement with respect to itself at any time on or after the close
of business on such date without liability of such Buyer to any other party; provided, however, (i) the right to terminate this
Agreement under this Section 8 shall not be available to such Buyer if the failure of the transactions contemplated by this Agreement
to have been consummated by such date is the result of such Buyer’s breach of this Agreement and (ii) the abandonment of the
sale and purchase of the Notes and the Warrants shall be applicable only to such Buyer providing such written notice, provided further
that no such termination shall affect any obligation of the Company under this Agreement to reimburse such Buyer for the expenses described
in Section 4(g) above. Nothing contained in this Section 8 shall be deemed to release any party from any liability for
any breach by such party of the terms and provisions of this Agreement or the other Transaction Documents or to impair the right of any
party to compel specific performance by any other party of its obligations under this Agreement or the other Transaction Documents.
9. MISCELLANEOUS.
(a) Governing
Law; Jurisdiction; Jury Trial. All questions concerning the construction, validity, enforcement and interpretation of this Agreement
shall be governed by the internal laws of the State of New York, without giving effect to any choice of law or conflict of law provision
or rule (whether of the State of New York or any other jurisdictions) that would cause the application of the laws of any jurisdictions
other than the State of New York. The Company 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 under
any of the other Transaction Documents or with any transaction contemplated hereby or thereby, and hereby irrevocably waives, and agrees
not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper.
Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding
by mailing a copy thereof to such party at the address for such notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice thereof. The Company hereby appoints Cogency Global Inc., as its agent for
service of process in New York. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner
permitted by law. Nothing contained herein shall be deemed or operate to preclude any Buyer from bringing suit or taking other legal
action against the Company in any other jurisdiction to collect on the Company’s obligations to such Buyer or to enforce a judgment
or other court ruling in favor of such Buyer. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR UNDER ANY OTHER TRANSACTION DOCUMENT OR IN CONNECTION WITH OR
ARISING OUT OF THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT OR ANY TRANSACTION CONTEMPLATED HEREBY OR THEREBY. The choice of the
laws of the State of New York as the governing law of this Agreement is a valid choice of law and would be recognized and given effect
to in any action brought before a court of competent jurisdiction in the Cayman Islands except for those laws (i) which such court
considers to be procedural in nature, (ii) which are revenue or penal laws or (iii) the application of which would be inconsistent
with public policy, as such term is interpreted under the laws of the Cayman Islands. The choice of laws of the State of New York as
the governing law of this Agreement will be honored by competent courts in the Cayman Islands subject to compliance with relevant Cayman
Islands civil procedural requirements. The Company or any of its properties, assets or revenues does not have any right of immunity,
or to the extent that the Company or any of its properties, assets, or revenues may have or may hereafter become entitled to any such
right of immunity the Company hereby waives such right to the extent permitted by law, under Cayman Islands or New York law, from any
legal action, suit or proceeding, from the giving of any relief in any such legal action, suit or proceeding, from set-off or counterclaim,
from the jurisdiction of any Cayman Islands, New York or United States federal court, from service of process, attachment upon or prior
to judgment, or attachment in aid of execution of judgment, or from execution of a judgment, or other legal process or proceeding for
the giving of any relief or for the enforcement of a judgment, in any such court, with respect to its obligations, liabilities or any
other matter under or arising out of or in connection with this Agreement; and, to the extent that the Company, or any of its properties,
assets or revenues may have or may hereafter become entitled to any such right of immunity in any such court in which proceedings may
at any time be commenced, the Company hereby waives such right to the extent permitted by law and hereby consents to such relief and
enforcement as provided in this Agreement and the other Transaction Documents.
(b) Counterparts.
This Agreement may be executed in two or more identical counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and delivered to the other party. In the event that any signature
is delivered by facsimile transmission or by an e-mail which contains a portable document format (.pdf) file of an executed signature
page, such signature page 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 signature page were an original thereof.
(c) Headings;
Gender. The headings of this Agreement are for convenience of reference and shall not form part of, or affect the interpretation
of, this Agreement. Unless the context clearly indicates otherwise, each pronoun herein shall be deemed to include the masculine, feminine,
neuter, singular and plural forms thereof. The terms “including,” “includes,” “include” and words
of like import shall be construed broadly as if followed by the words “without limitation.” The terms “herein,”
“hereunder,” “hereof” and words of like import refer to this entire Agreement instead of just the provision in
which they are found.
(d) Severability;
Maximum Payment Amounts. If any provision of this Agreement is prohibited by law or otherwise determined to be invalid or unenforceable
by a court of competent jurisdiction, the provision that would otherwise be prohibited, invalid or unenforceable shall be deemed amended
to apply to the broadest extent that it would be valid and enforceable, and the invalidity or unenforceability of such provision shall
not affect the validity of the remaining provisions of this Agreement so long as this Agreement as so modified continues to express,
without material change, the original intentions of the parties as to the subject matter hereof and the prohibited nature, invalidity
or unenforceability of the provision(s) in question does not substantially impair the respective expectations or reciprocal obligations
of the parties or the practical realization of the benefits that would otherwise be conferred upon the parties. The parties will endeavor
in good faith negotiations to replace the prohibited, invalid or unenforceable provision(s) with a valid provision(s), the effect
of which comes as close as possible to that of the prohibited, invalid or unenforceable provision(s). Notwithstanding anything to the
contrary contained in this Agreement or any other Transaction Document (and without implication that the following is required or applicable),
it is the intention of the parties that in no event shall amounts and value paid by the Company and/or any of its Subsidiaries (as the
case may be), or payable to or received by any of the Buyers, under the Transaction Documents (including without limitation, any amounts
that would be characterized as “interest” under applicable law) exceed amounts permitted under any applicable law. Accordingly,
if any obligation to pay, payment made to any Buyer, or collection by any Buyer pursuant the Transaction Documents is finally judicially
determined to be contrary to any such applicable law, such obligation to pay, payment or collection shall be deemed to have been made
by mutual mistake of such Buyer, the Company and its Subsidiaries and such amount shall be deemed to have been adjusted with retroactive
effect to the maximum amount or rate of interest, as the case may be, as would not be so prohibited by the applicable law. Such adjustment
shall be effected, to the extent necessary, by reducing or refunding, at the option of such Buyer, the amount of interest or any other
amounts which would constitute unlawful amounts required to be paid or actually paid to such Buyer under the Transaction Documents. For
greater certainty, to the extent that any interest, charges, fees, expenses or other amounts required to be paid to or received by such
Buyer under any of the Transaction Documents or related thereto are held to be within the meaning of “interest” or another
applicable term to otherwise be violative of applicable law, such amounts shall be pro-rated over the period of time to which they relate.
(e) Entire
Agreement; Amendments. This Agreement, the other Transaction Documents and the schedules and exhibits attached hereto and thereto
and the instruments referenced herein and therein supersede all other prior oral or written agreements between the Buyers, the Company,
its Subsidiaries, their affiliates and Persons acting on their behalf, including, without limitation, any transactions by any Buyer with
respect to Ordinary Shares or the Securities, and the other matters contained herein and therein, and this Agreement, the other Transaction
Documents, the schedules and exhibits attached hereto and thereto and the instruments referenced herein and therein contain the entire
understanding of the parties solely with respect to the matters covered herein and therein; provided, however, nothing contained in this
Agreement or any other Transaction Document shall (or shall be deemed to) (i) have any effect on any agreements any Buyer has entered
into with, or any instruments any Buyer has received from, the Company or any of its Subsidiaries prior to the date hereof with respect
to any prior investment made by such Buyer in the Company or (ii) waive, alter, modify or amend in any respect any obligations of
the Company or any of its Subsidiaries, or any rights of or benefits to any Buyer or any other Person, in any agreement entered into
prior to the date hereof between or among the Company and/or any of its Subsidiaries and any Buyer, or any instruments any Buyer received
from the Company and/or any of its Subsidiaries prior to the date hereof, and all such agreements and instruments shall continue in full
force and effect. Except as specifically set forth herein or therein, neither the Company nor any Buyer makes any representation, warranty,
covenant or undertaking with respect to such matters. For clarification purposes, the Recitals are part of this Agreement. No provision
of this Agreement may be amended other than by an instrument in writing signed by the Company and the Required Holders (as defined below),
and any amendment to any provision of this Agreement made in conformity with the provisions of this Section 9(e) shall be binding
on all Buyers and holders of Securities, as applicable; provided that no such amendment shall be effective to the extent that it (A) applies
to less than all of the holders of the Securities then outstanding or (B) imposes any obligation or liability on any Buyer without
such Buyer’s prior written consent (which may be granted or withheld in such Buyer’s sole discretion); and provided further
that the provisions of Sections 4(v) and 4(w) above cannot be amended or waived without the additional prior written approval
of the Collateral Agent or its successor. Notwithstanding anything in any Transaction Document to the contrary, no waiver shall be effective
unless it is in writing and signed by an authorized representative of the waiving party, provided that the Required Holders may waive
any provision of this Agreement or any other Transaction Document, and any waiver of any provision of this Agreement or any other Transaction
Document made in conformity with the provisions of this Section 9(e) shall be binding on all Buyers and holders of Securities,
as applicable, provided that no such waiver shall be effective to the extent that it (1) applies to less than all of the holders
of the Securities then outstanding (unless a party gives a waiver as to itself only) or (2) imposes any obligation or liability
on any Buyer without such Buyer’s prior written consent (which may be granted or withheld in such Buyer’s sole discretion).
No consideration (other than reimbursement of legal fees) shall be offered or paid to any Person to amend or consent to a waiver or modification
of any provision of any of the Transaction Documents unless the same consideration also is offered to all of the parties to the Transaction
Documents, all holders of the Notes or all holders of the Warrants (as the case may be). From the date hereof and while any Notes or
Warrants are outstanding, the Company shall not be permitted to receive any consideration from a Buyer or a holder of Notes or Warrants
that is not otherwise contemplated by the Transaction Documents in order to, directly or indirectly, induce the Company or any Subsidiary
(i) to treat such Buyer or holder of Notes or Warrants in a manner that is more favorable than to other similarly situated Buyers
or holders of Notes or Warrants, as applicable, or (ii) to treat any Buyer(s) or holder(s) of Notes or Warrants in a manner
that is less favorable than the Buyer or holder of Notes or Warrants that is paying such consideration; provided, however, that the determination
of whether a Buyer has been treated more or less favorably than another Buyer shall disregard any securities of the Company purchased
or sold by any Buyer. The Company has not, directly or indirectly, made any agreements with any Buyers relating to the terms or conditions
of the transactions contemplated by the Transaction Documents except as set forth in the Transaction Documents. Without limiting the
foregoing, the Company confirms that, except as set forth in this Agreement, no Buyer has made any commitment or promise or has any other
obligation to provide any financing to the Company, any Subsidiary or otherwise. As a material inducement for each Buyer to enter into
this Agreement, the Company expressly acknowledges and agrees that (x) no due diligence or other investigation or inquiry conducted
by a Buyer, any of its advisors or any of its representatives shall affect such Buyer’s right to rely on, or shall modify or qualify
in any manner or be an exception to any of, the Company’s representations and warranties contained in this Agreement or any other
Transaction Document and (y) unless a provision of this Agreement or any other Transaction Document is expressly preceded by the
phrase “except as disclosed in the SEC Documents,” nothing contained in any of the SEC Documents shall affect such Buyer’s
right to rely on, or shall modify or qualify in any manner or be an exception to any of, the Company’s representations and warranties
contained in this Agreement or any other Transaction Document. “Required Holders” means (I) prior to the Closing
Date, each Buyer entitled to purchase Notes at the Closing and (II) on or after the Closing Date, holders of a majority of the Registrable
Securities as of such time (excluding any Registrable Securities held by the Company or any of its Subsidiaries as of such time) issued
or issuable hereunder or pursuant to the Notes and/or the Warrants (or the Buyers, with respect to any waiver or amendment of Section 4(o));
provided, that such majority must include [ ].
(f) Notices.
Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement must be in
writing and will be deemed to have been delivered: (i) upon receipt, when delivered personally; (ii) upon receipt, when sent
by electronic mail (provided that such sent email is kept on file (whether electronically or otherwise) by the sending party and the
sending party does not receive an automatically generated message from the recipient’s email server that such e-mail could not
be delivered to such recipient); or (iii) one (1) Business Day after deposit with an overnight courier service with next day
delivery specified, in each case, properly addressed to the party to receive the same. The mailing addresses and e-mail addresses for
such communications shall be:
If
to the Company:
Bit
Origin Ltd
27F, Samsung Hub
3 Church Street, Singapore
Telephone: (347) 556-4747
Attention: Chief Executive Officer
Email: ir@bitorigin.io
With
a copy (for informational purposes only) to:
Ortoli
Rosenstadt LLP
366 Madison Avenue, 3rd Floor
New York, NY 10017
Telephone: (212) 588-0022
Attention: Mengji “Jason” Ye
Email: jye@orllp.legal
If
to the Transfer Agent:
Securities
Transfer Corporation
2901 N Dallas Parkway
Suite 380
Plano, Texas 75093
Telephone: (469) 633-0101
Attention: Matthew Smith
Email: smith@stctransfer.com
If
to a Buyer, to its mailing address and e-mail address set forth on the Schedule of Buyers, with copies to such Buyer’s representatives
as set forth on the Schedule of Buyers,
with
a copy (for informational purposes only) to:
Kelley
Drye & Warren LLP
3 World Trade Center
175 Greenwich Street
New York, NY 10007
Telephone: (212) 808-7540
Attention: Michael A. Adelstein, Esq.
Email: madelstein@kelleydrye.com
or
to such other mailing address and/or e-mail address and/or to the attention of such other Person as the recipient party has specified
by written notice given to each other party five (5) days prior to the effectiveness of such change, provided that Kelley Drye &
Warren LLP shall only be provided copies of notices sent to the lead Buyer. Written confirmation of receipt (A) given by the recipient
of such notice, consent, waiver or other communication, (B) mechanically or electronically generated by the sender’s e-mail
containing the time, date and recipient’s e-mail or (C) provided by an overnight courier service shall be rebuttable evidence
of personal service, receipt by e-mail or receipt from an overnight courier service in accordance with clause (i), (ii) or (iii) above,
respectively.
(g) Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns,
including any purchasers of any of the Notes and Warrants. The Company shall not assign this Agreement or any rights or obligations hereunder
without the prior written consent of the Required Holders, including, without limitation, by way of a Fundamental Transaction (as defined
in the Warrants) (unless the Company is in compliance with the applicable provisions governing Fundamental Transactions set forth in
the Warrants) or a Fundamental Transaction (as defined in the Notes) (unless the Company is in compliance with the applicable provisions
governing Fundamental Transactions set forth in the Notes). A Buyer may assign some or all of its rights hereunder in connection with
any transfer of any of its Securities without the consent of the Company, in which event such assignee shall be deemed to be a Buyer
hereunder with respect to such assigned rights.
(h) No
Third Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective permitted successors
and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, other than the Indemnitees
referred to in Section 9(k).
(i) Survival.
The representations, warranties, agreements and covenants shall survive each Closing. Each Buyer shall be responsible only for its own
representations, warranties, agreements and covenants hereunder.
(j) Further
Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute
and deliver all such other agreements, certificates, instruments and documents, as any other party may reasonably request in order to
carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.
(k) Indemnification.
In consideration of each Buyer’s execution and delivery of the Transaction Documents and acquiring the Securities thereunder and
in addition to all of the Company’s other obligations under the Transaction Documents, the Company shall defend, protect, indemnify
and hold harmless each Buyer and each holder of any Securities and all of their shareholders, partners, members, officers, directors,
employees and direct or indirect investors and any of the foregoing Persons’ agents or other representatives (including, without
limitation, those retained in connection with the transactions contemplated by this Agreement) (collectively, the “Indemnitees”)
from and against any and all actions, causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages, and expenses
in connection therewith (irrespective of whether any such Indemnitee is a party to the action for which indemnification hereunder is
sought), and including reasonable attorneys’ fees and disbursements (the “Indemnified Liabilities”), incurred
by any Indemnitee as a result of, or arising out of, or relating to (i) any misrepresentation or breach of any representation or
warranty made by the Company or any Subsidiary in any of the Transaction Documents, (ii) any breach of any covenant, agreement or
obligation of the Company or any Subsidiary contained in any of the Transaction Documents or (iii) any cause of action, suit, proceeding
or claim brought or made against such Indemnitee by a third party (including for these purposes a derivative action brought on behalf
of the Company or any Subsidiary) or which otherwise involves such Indemnitee that arises out of or results from (A) the execution,
delivery, performance or enforcement of any of the Transaction Documents, (B) any transaction financed or to be financed in whole
or in part, directly or indirectly, with the proceeds of the issuance of the Securities, (C) any disclosure properly made by such
Buyer pursuant to Section 4(i), or (D) the status of such Buyer or holder of the Securities either as an investor in the Company
pursuant to the transactions contemplated by the Transaction Documents or as a party to this Agreement (including, without limitation,
as a party in interest or otherwise in any action or proceeding for injunctive or other equitable relief). To the extent that the foregoing
undertaking by the Company may be unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction
of each of the Indemnified Liabilities which is permissible under applicable law. Except as otherwise set forth herein, the mechanics
and procedures with respect to the rights and obligations under this Section 9(k) shall be the same as those set forth in Section 6
of the Registration Rights Agreement.
(l) Construction.
The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rules of
strict construction will be applied against any party. No specific representation or warranty shall limit the generality or applicability
of a more general representation or warranty. Each and every reference to share prices, Ordinary Shares and any other numbers in this
Agreement that relate to the Ordinary Shares shall be automatically adjusted for any share splits, share dividends, share combinations,
recapitalizations or other similar transactions that occur with respect to the Ordinary Shares after the date of this Agreement. Notwithstanding
anything in this Agreement to the contrary, for the avoidance of doubt, nothing contained herein shall constitute a representation or
warranty against, or a prohibition of, any actions with respect to the borrowing of, arrangement to borrow, identification of the availability
of, and/or securing of, securities of the Company in order for such Buyer (or its broker or other financial representative) to effect
short sales or similar transactions in the future.
(m) Remedies.
Each Buyer and in the event of assignment by Buyer of its rights and obligations hereunder, each holder of Securities, shall have all
rights and remedies set forth in the Transaction Documents and all rights and remedies which such holders have been granted at any time
under any other agreement or contract and all of the rights which such holders have under any law. Any Person having any rights under
any provision of this Agreement shall be entitled to enforce such rights specifically (without posting a bond or other security), to
recover damages by reason of any breach of any provision of this Agreement and to exercise all other rights granted by law. Furthermore,
the Company recognizes that in the event that it or any Subsidiary fails to perform, observe, or discharge any or all of its or such
Subsidiary’s (as the case may be) obligations under the Transaction Documents, any remedy at law would inadequate relief to the
Buyers. The Company therefore agrees that the Buyers shall be entitled to specific performance and/or temporary, preliminary and permanent
injunctive or other equitable relief from any court of competent jurisdiction in any such case without the necessity of proving actual
damages and without posting a bond or other security. The remedies provided in this Agreement and the other Transaction Documents shall
be cumulative and in addition to all other remedies available under this Agreement and the other Transaction Documents, at law or in
equity (including a decree of specific performance and/or other injunctive relief).
(n) Withdrawal
Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) the Transaction Documents,
whenever any Buyer exercises a right, election, demand or option under a Transaction Document and the Company or any Subsidiary does
not timely perform its related obligations within the periods therein provided, then such Buyer may rescind or withdraw, in its sole
discretion from time to time upon written notice to the Company or such Subsidiary (as the case may be), any relevant notice, demand
or election in whole or in part without prejudice to its future actions and rights.
(o) Payment
Set Aside; Currency. To the extent that the Company makes a payment or payments to any Buyer hereunder or pursuant to any of the
other Transaction Documents or any of the Buyers enforce or exercise their rights hereunder or thereunder, and such payment or payments
or the proceeds of such enforcement or exercise or any part thereof are subsequently invalidated, declared to be fraudulent or preferential,
set aside, recovered from, disgorged by or are required to be refunded, repaid or otherwise restored to the Company, a trustee, receiver
or any other Person under any law (including, without limitation, any bankruptcy law, foreign, state or federal law, common law or equitable
cause of action), then to the extent of any such restoration the obligation or part thereof originally intended to be satisfied shall
be revived and continued in full force and effect as if such payment had not been made or such enforcement or setoff had not occurred.
Unless otherwise expressly indicated, all dollar amounts referred to in this Agreement and the other Transaction Documents are in United
States Dollars (“U.S. Dollars”), and all amounts owing under this Agreement and all other Transaction Documents shall
be paid in U.S. Dollars. All amounts denominated in other currencies (if any) shall be converted into the U.S. Dollar equivalent amount
in accordance with the Exchange Rate on the date of calculation. “Exchange Rate” means, in relation to any amount
of currency to be converted into U.S. Dollars pursuant to this Agreement, the U.S. Dollar exchange rate as published in the Wall Street
Journal on the relevant date of calculation.
(p) Judgment
Currency.
(i) If
for the purpose of obtaining or enforcing judgment against the Company in connection with this Agreement or any other Transaction Document
in any court in any jurisdiction it becomes necessary to convert into any other currency (such other currency being hereinafter in this
Section 9(p) referred to as the “Judgment Currency”) an amount due in US Dollars under this Agreement, the
conversion shall be made at the Exchange Rate prevailing on the Trading Day immediately preceding:
(1) the
date actual payment of the amount due, in the case of any proceeding in the courts of New York or in the courts of any other jurisdiction
that will give effect to such conversion being made on such date: or
(2) the
date on which the foreign court determines, in the case of any proceeding in the courts of any other jurisdiction (the date as of which
such conversion is made pursuant to this Section 9(p)(i)(2) being hereinafter referred to as the “Judgment Conversion
Date”).
(ii) If
in the case of any proceeding in the court of any jurisdiction referred to in Section 9(p)(i)(2) above, there is a change in
the Exchange Rate prevailing between the Judgment Conversion Date and the date of actual payment of the amount due, the applicable party
shall pay such adjusted amount as may be necessary to ensure that the amount paid in the Judgment Currency, when converted at the Exchange
Rate prevailing on the date of payment, will produce the amount of US Dollars which could have been purchased with the amount of Judgment
Currency stipulated in the judgment or judicial order at the Exchange Rate prevailing on the Judgment Conversion Date.
(iii) Any
amount due from the Company under this provision shall be due as a separate debt and shall not be affected by judgment being obtained
for any other amounts due under or in respect of this Agreement or any other Transaction Document.
(q) Independent
Nature of Buyers’ Obligations and Rights. The obligations of each Buyer under the Transaction Documents are several and not
joint with the obligations of any other Buyer, and no Buyer shall be responsible in any way for the performance of the obligations of
any other Buyer under any Transaction Document. Nothing contained herein or in any other Transaction Document, and no action taken by
any Buyer pursuant hereto or thereto, shall be deemed to constitute the Buyers as, and the Company acknowledges that the Buyers do not
so constitute, a partnership, an association, a joint venture or any other kind of group or entity, or create a presumption that the
Buyers are in any way acting in concert or as a group or entity, and the Company shall not assert any such claim with respect to such
obligations or the transactions contemplated by the Transaction Documents or any matters, and the Company acknowledges that the Buyers
are not acting in concert or as a group, and the Company shall not assert any such claim, with respect to such obligations or the transactions
contemplated by the Transaction Documents. The decision of each Buyer to purchase Securities pursuant to the Transaction Documents has
been made by such Buyer independently of any other Buyer. Each Buyer acknowledges that no other Buyer has acted as agent for such Buyer
in connection with such Buyer making its investment hereunder and that no other Buyer will be acting as agent of such Buyer in connection
with monitoring such Buyer’s investment in the Securities or enforcing its rights under the Transaction Documents. The Company
and each Buyer confirms that each Buyer has independently participated with the Company and its Subsidiaries in the negotiation of the
transaction contemplated hereby with the advice of its own counsel and advisors. Each Buyer shall be entitled to independently protect
and enforce its rights, including, without limitation, the rights arising out of this Agreement or out of any other Transaction Documents,
and it shall not be necessary for any other Buyer to be joined as an additional party in any proceeding for such purpose. The use of
a single agreement to effectuate the purchase and sale of the Securities contemplated hereby was solely in the control of the Company,
not the action or decision of any Buyer, and was done solely for the convenience of the Company and its Subsidiaries and not because
it was required or requested to do so by any Buyer. It is expressly understood and agreed that each provision contained in this Agreement
and in each other Transaction Document is between the Company, each Subsidiary and a Buyer, solely, and not between the Company, its
Subsidiaries and the Buyers collectively and not between and among the Buyers.
[signature
pages follow]
IN
WITNESS WHEREOF, each Buyer and the Company have caused their respective signature page to this Agreement to be duly executed
as of the date first written above.
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COMPANY: |
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BIT ORIGIN LTD |
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By: |
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Name: |
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Title: |
IN
WITNESS WHEREOF, each Buyer and the Company have caused their respective signature page to this Agreement to be duly executed
as of the date first written above.
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BUYER: |
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By: |
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Name: |
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Title: |
SCHEDULE
OF BUYERS
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(5) |
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(7) |
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(9) |
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| Buyer |
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Address and
Facsimile
Number |
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Original
Principal
Amount of
Initial Notes |
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Maximum
Original
Principal
Amount of
Additional
Notes |
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Aggregate
Number of
Warrant
Shares |
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Initial
Purchase
Price |
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Maximum
Additional
Purchase
Price |
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Legal Representative’s
Address and Facsimile Number |
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$ |
6,740,000 |
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$ |
18,000,000 |
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* |
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$ |
6,127,334 |
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$ |
16,363,800 |
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Kelley Drye & Warren LLP
3 World Trade Center
175 Greenwich Street
New York, NY 10007
Telephone: (212) 808-7540
Facsimile: (212) 808-7897
Attention: Michael A. Adelstein, Esq. |
* The aggregate number of warrant shares will
equal 60% of the quotient of (x) the original principal amount of the Initial Notes, divided by (y) the lower of (a) the average VWAP
(as defined in the Warrants) during the five (5) consecutive Trading Day (as defined in the Warrants) period ending and including the
Trading Day immediately preceding the Initial Closing Date or (b) the average VWAP (as defined in the Warrants) during the five (5) consecutive
Trading Day (as defined in the Warrants) period ending and including the Trading Day immediately preceding the date of this Agreement.
Exhibit 10.2
EXECUTION VERSION
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS
AGREEMENT (this “Agreement”), dated as of December __, 2023, is by and among Bit Origin Ltd, an exempted company
incorporated under the laws of the Cayman Islands with offices located at 27F, Samsung Hub, 3 Church Street, Singapore 049483 (the “Company”),
and the undersigned buyers (each, a “Buyer,” and collectively, the “Buyers”).
RECITALS
A. In
connection with the Securities Purchase Agreement by and among the parties hereto, dated as of December __, 2023 (the “Securities
Purchase Agreement”), the Company has agreed, upon the terms and subject to the conditions of the Securities Purchase Agreement,
to issue and sell to each Buyer (i) the Notes (as defined in the Securities Purchase Agreement) which will be convertible into Conversion
Shares (as defined in the Securities Purchase Agreement) in accordance with the terms of the Notes and (ii) the Warrants (as defined
in the Securities Purchase Agreement) which will be exercisable to purchase Warrant Shares (as defined in the Securities Purchase Agreement)
in accordance with the terms of the Warrants.
B. To
induce the Buyers to consummate the transactions contemplated by the Securities Purchase Agreement, the Company has agreed to provide
certain registration rights under the Securities Act of 1933, as amended, and the rules and regulations thereunder, or any similar
successor statute (collectively, the “1933 Act”), and applicable state securities laws.
AGREEMENT
NOW, THEREFORE, in
consideration of the premises and the mutual covenants contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and each of the Buyers hereby agree as follows:
1. Definitions.
Capitalized terms used herein
and not otherwise defined herein shall have the respective meanings set forth in the Securities Purchase Agreement. As used in this Agreement,
the following terms shall have the following meanings:
(a) “Business
Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, for clarification, commercial
banks shall not be deemed to be authorized or required by law to remain closed due to “stay at home”, “shelter-in-place”,
“non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the
direction of any governmental authority so long as the electronic funds transfer systems (including for wire transfers) of commercial
banks in The City of New York generally are open for use by customers on such day.
(b) “Effective
Date” means the date that the applicable Registration Statement has been declared effective by the SEC.
(c) “Effectiveness
Deadline” means (i) with respect to the initial Registration Statement required to be filed pursuant to Section 2(a),
the earlier of the (A) 150th calendar day after the Initial Closing Date and (B) 2nd Business Day after the date
the Company is notified (orally or in writing, whichever is earlier) by the SEC that such Registration Statement will not be reviewed
or will not be subject to further review and (ii) with respect to any additional Registration Statements that may be required to
be filed by the Company pursuant to this Agreement, the earlier of the (A) 150th calendar day following the date on which
the Company was required to file such additional Registration Statement and (B) 2nd Business Day after the date the Company
is notified (orally or in writing, whichever is earlier) by the SEC that such Registration Statement will not be reviewed or will not
be subject to further review.
(d) “Filing
Deadline” means (i) with respect to the initial Registration Statement required to be filed pursuant to Section 2(a),
the 45th calendar day after the Initial Closing Date and (ii) with respect to any additional Registration Statements that
may be required to be filed by the Company pursuant to this Agreement, the date on which the Company was required to file such additional
Registration Statement pursuant to the terms of this Agreement.
(e) “Initial
Closing Date” shall have the meaning set forth in the Securities Purchase Agreement.
(f) “Investor”
means a Buyer or any transferee or assignee of any Registrable Securities, Notes or Warrants, as applicable, to whom a Buyer assigns its
rights under this Agreement and who agrees to become bound by the provisions of this Agreement in accordance with Section 9 and any
transferee or assignee thereof to whom a transferee or assignee of any Registrable Securities, Notes or Warrants, as applicable, assigns
its rights under this Agreement and who agrees to become bound by the provisions of this Agreement in accordance with Section 9.
(g) “Person”
means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization,
any other entity or a government or any department or agency thereof.
(h) “register,”
“registered,” and “registration” refer to a registration effected by preparing and filing one or
more Registration Statements in compliance with the 1933 Act and pursuant to Rule 415 and the declaration of effectiveness of such
Registration Statement(s) by the SEC.
(i) “Registrable
Securities” means (i) the Conversion Shares, (ii) the Warrant Shares and (iii) any share capital of the Company
issued or issuable with respect to the Conversion Shares, the Warrant Shares, the Notes or the Warrants, including, without limitation,
(1) as a result of any share split, share dividend, recapitalization, exchange or similar event or otherwise and (2) any share
capital of the Company into which the Ordinary Shares (as defined in the Notes) are converted or exchanged and share capital of a Successor
Entity (as defined in the Warrants) into which the Ordinary Shares are converted or exchanged, in each case, without regard to any limitations
on conversion of the Notes or exercise of the Warrants.
(j) “Registration
Statement” means a registration statement or registration statements of the Company filed under the 1933 Act covering Registrable
Securities.
(k) “Required
Holders” shall have the meaning as set forth in the Securities Purchase Agreement.
(l) “Required
Registration Amount” means, as of any time of determination, the sum of (i) the maximum number of Conversion Shares issuable
upon conversion of the Notes (assuming for purposes hereof that (w) all Additional Notes (as defined in the Securities Purhase Agreement)
issuable pursuant to the Securities Purchase Agreement shall have been issued at an Additional Closing (as defined in the Securities Purhase
Agreement) on the Initial Closing Date, (x) the Notes are convertible at the Floor Price (as defined in the Notes) as of such time
of determination, (y) interest on the Notes shall accrue through the third anniversary of the Initial Closing Date and will be converted
in Ordinary Shares at the Floor Price as of such time of determination and (z) any such conversion shall not take into account any
limitations on the conversion of the Notes set forth in the Notes) and (ii) 116% of the maximum number of Warrant Shares issuable
upon exercise of the Warrants (without taking into account any limitations on the exercise of the Warrants set forth therein, but assuming
that all Additional Notes issuable hereunder shall have been issued at an Additional Closing on the Initial Closing Date (and all adjustments
to the Warrants upon the occurrence of such Additional Closing shall have occurred in accordance with the terms thereof), all subject
to adjustment as provided in Section 2(d) and/or Section 2(f).
(m) “Rule 144”
means Rule 144 promulgated by the SEC under the 1933 Act, as such rule may be amended from time to time, or any other similar
or successor rule or regulation of the SEC that may at any time permit the Investors to sell securities of the Company to the public
without registration.
(n) “Rule 415”
means Rule 415 promulgated by the SEC under the 1933 Act, as such rule may be amended from time to time, or any other similar
or successor rule or regulation of the SEC providing for offering securities on a continuous or delayed basis.
(o) “SEC”
means the United States Securities and Exchange Commission or any successor thereto.
2. Registration.
(a) Mandatory
Registration. The Company shall prepare and, as soon as practicable, but in no event later than the Filing Deadline, file with the
SEC an initial Registration Statement on Form F-3 covering the resale of all of the Registrable Securities, provided that such initial
Registration Statement shall register for resale at least the number of Ordinary Shares equal to the Required Registration Amount as of
the date such Registration Statement is initially filed with the SEC; provided further that if Form F-3 is unavailable for such a
registration, the Company shall use such other form as is required by Section 2(c). Such initial Registration Statement, and each
other Registration Statement required to be filed pursuant to the terms of this Agreement, shall contain (except if otherwise directed
by the Required Holders) the “Selling Shareholders” and “Plan of Distribution” sections in substantially
the form attached hereto as Exhibit B. The Company shall use its best efforts to have such initial Registration Statement,
and each other Registration Statement required to be filed pursuant to the terms of this Agreement, declared effective by the SEC as soon
as practicable, but in no event later than the applicable Effectiveness Deadline for such Registration Statement.
(b) Legal
Counsel. Subject to Section 5 hereof, Kelley Drye & Warren LLP, counsel solely to the lead investor (“Legal
Counsel”), shall review and oversee any registration, solely on behalf of the lead investor, pursuant to this Section 2.
(c) Ineligibility
to Use Form F-3. In the event that Form F-3 is not available for the registration of the resale of Registrable Securities
hereunder, the Company shall (i) register the resale of the Registrable Securities on Form F-1 or another appropriate form reasonably
acceptable to the Required Holders and (ii) undertake to register the resale of the Registrable Securities on Form F-3 as soon
as such form is available, provided that the Company shall maintain the effectiveness of all Registration Statements then in effect until
such time as a Registration Statement on Form F-3 covering the resale of all the Registrable Securities has been declared effective
by the SEC and the prospectus contained therein is available for use.
(d) Sufficient
Number of Shares Registered. In the event the number of shares available under any Registration Statement is insufficient to cover
all of the Registrable Securities required to be covered by such Registration Statement or an Investor’s allocated portion of the
Registrable Securities pursuant to Section 2(h), the Company shall amend such Registration Statement (if permissible), or file with
the SEC a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover at least the Required
Registration Amount as of the Trading Day (as defined in the Warrant) immediately preceding the date of the filing of such amendment or
new Registration Statement, in each case, as soon as practicable, but in any event not later than fifteen (15) days after the necessity
therefor arises (but taking account of any Staff position with respect to the date on which the Staff will permit such amendment to the
Registration Statement and/or such new Registration Statement (as the case may be) to be filed with the SEC). The Company shall use its
best efforts to cause such amendment to such Registration Statement and/or such new Registration Statement (as the case may be) to become
effective as soon as practicable following the filing thereof with the SEC, but in no event later than the applicable Effectiveness Deadline
for such Registration Statement. For purposes of the foregoing provision, the number of shares available under a Registration Statement
shall be deemed “insufficient to cover all of the Registrable Securities” if at any time the number of Ordinary Shares available
for resale under the applicable Registration Statement is less than the product determined by multiplying (i) the Required Registration
Amount as of such time by (ii) 0.90. The calculation set forth in the foregoing sentence shall be made without regard to any limitations
on conversion, amortization and/or redemption of the Notes or exercise of the Warrants (and such calculation shall assume (A) that
the Notes are then convertible in full into Ordinary Shares at the then prevailing Conversion Rate (as defined in the Notes), (B) the
initial outstanding principal amount of the Notes remains outstanding through the scheduled Maturity Date (as defined in the Notes) and
no redemptions of the Notes occur prior to the scheduled Maturity Date and (C) the Warrants are then exercisable in full into Ordinary
Shares at the then prevailing Exercise Price (as defined in the Warrants)).
(e) Effect
of Failure to File and Obtain and Maintain Effectiveness of any Registration Statement. If (i) a Registration Statement covering
the resale of all of the Registrable Securities required to be covered thereby (disregarding any reduction pursuant to Section 2(f))
and required to be filed by the Company pursuant to this Agreement is (A) not filed with the SEC on or before the Filing Deadline
for such Registration Statement (a “Filing Failure”) (it being understood that if the Company files a Registration
Statement without affording each Investor and Legal Counsel the opportunity to review and comment on the same as required by Section 3(c) hereof,
the Company shall be deemed to not have satisfied this clause (i)(A) and such event shall be deemed to be a Filing Failure)
or (B) not declared effective by the SEC on or before the Effectiveness Deadline for such Registration Statement (an “Effectiveness
Failure”) (it being understood that if on the Business Day immediately following the Effective Date for such Registration Statement
the Company shall not have filed a “final” prospectus for such Registration Statement with the SEC under Rule 424(b) in
accordance with Section 3(b) (whether or not such a prospectus is technically required by such rule), the Company shall be deemed
to not have satisfied this clause (i)(B) and such event shall be deemed to be an Effectiveness Failure), (ii) other than during
an Allowable Grace Period (as defined below), on any day after the Effective Date of a Registration Statement sales of all of the Registrable
Securities required to be included on such Registration Statement (disregarding any reduction pursuant to Section 2(f)) cannot be
made pursuant to such Registration Statement (including, without limitation, because of a failure to keep such Registration Statement
effective, a failure to disclose such information as is necessary for sales to be made pursuant to such Registration Statement, a suspension
or delisting of (or a failure to timely list) the Ordinary Shares on the Principal Market (as defined in the Securities Purchase Agreement)
or any other limitations imposed by the Principal Market, or a failure to register a sufficient number of Ordinary Shares or by reason
of a stop order) or the prospectus contained therein is not available for use for any reason (a “Maintenance Failure”),
or (iii) if a Registration Statement is not effective for any reason or the prospectus contained therein is not available for use
for any reason, and either (x) the Company fails for any reason to satisfy the requirements of Rule 144(c)(1), including, without
limitation, the failure to satisfy the current public information requirement under Rule 144(c) or (y) the Company has
ever been an issuer described in Rule 144(i)(1)(i) or becomes such an issuer in the future, and the Company shall fail to satisfy
any condition set forth in Rule 144(i)(2) (a “Current Public Information Failure”) as a result of which any
of the Investors are unable to sell Registrable Securities without restriction under Rule 144 (including, without limitation, volume
restrictions), then, as partial relief for the damages to any holder by reason of any such delay in, or reduction of, its ability to sell
the underlying Ordinary Shares (which remedy shall not be exclusive of any other remedies available at law or in equity, including, without
limitation, specific performance), the Company shall pay to each holder of Registrable Securities relating to such Registration Statement
an amount in cash equal to two percent (2%) of such Investor’s original principal amount stated in such Investor’s Note on
the Initial Closing Date (1) on the date of such Filing Failure, Effectiveness Failure, Maintenance Failure or Current Public Information
Failure, as applicable, and (2) on every thirty (30) day anniversary of (I) a Filing Failure until such Filing Failure is cured;
(II) an Effectiveness Failure until such Effectiveness Failure is cured; (III) a Maintenance Failure until such Maintenance
Failure is cured; and (IV) a Current Public Information Failure until the earlier of (i) the date such Current Public Information
Failure is cured and (ii) such time that such public information is no longer required pursuant to Rule 144 (in each case, pro
rated for periods totaling less than thirty (30) days). The payments to which a holder of Registrable Securities shall be entitled pursuant
to this Section 2(e) are referred to herein as “Registration Delay Payments.” Following the initial Registration
Delay Payment for any particular event or failure (which shall be paid on the date of such event or failure, as set forth above), without
limiting the foregoing, if an event or failure giving rise to the Registration Delay Payments is cured prior to any thirty (30) day anniversary
of such event or failure, then such Registration Delay Payment shall be made on the third (3rd) Business Day after such cure.
In the event the Company fails to make Registration Delay Payments in a timely manner in accordance with the foregoing, such Registration
Delay Payments shall bear interest at the rate of two percent (2%) per month (prorated for partial months) until paid in full. Notwithstanding
the foregoing, no Registration Delay Payments shall be owed to an Investor (other than with respect to a Maintenance Failure resulting
from a suspension or delisting of (or a failure to timely list) the Ordinary Shares on the Principal Market) with respect to any period
during which all of such Investor’s Registrable Securities may be sold by such Investor without restriction under Rule 144
(including, without limitation, volume restrictions) and without the need for current public information required by Rule 144(c)(1) (or
Rule 144(i)(2), if applicable).
(f) Offering.
Notwithstanding anything to the contrary contained in this Agreement, but subject to the payment of the Registration Delay Payments pursuant
to Section 2(e), in the event the staff of the SEC (the “Staff”) or the SEC seeks to characterize any offering
pursuant to a Registration Statement filed pursuant to this Agreement as constituting an offering of securities by, or on behalf
of, the Company, or in any other manner, such that the Staff or the SEC do not permit such Registration Statement to become
effective and used for resales in a manner that does not constitute such an offering and that permits the continuous resale at the market
by the Investors participating therein (or as otherwise may be acceptable to each Investor) without being named therein as an
“underwriter,” then the Company shall reduce the number of shares to be included in such Registration Statement by all Investors
until such time as the Staff and the SEC shall so permit such Registration Statement to become effective as aforesaid. In making
such reduction, the Company shall reduce the number of shares to be included by all Investors on a pro rata basis (based upon the number
of Registrable Securities otherwise required to be included for each Investor) unless the inclusion of shares by a particular Investor
or a particular set of Investors are resulting in the Staff or the SEC’s “by or on behalf of the Company” offering position,
in which event the shares held by such Investor or set of Investors shall be the only shares subject to reduction (and if by a set of
Investors on a pro rata basis by such Investors or on such other basis as would result in the exclusion of the least number of shares
by all such Investors); provided, that, with respect to such pro rata portion allocated to any Investor, such Investor may elect the allocation
of such pro rata portion among the Registrable Securities of such Investor. In addition, in the event that the Staff or the SEC requires
any Investor seeking to sell securities under a Registration Statement filed pursuant to this Agreement to be specifically identified
as an “underwriter” in order to permit such Registration Statement to become effective, and such Investor does not consent
to being so named as an underwriter in such Registration Statement, then, in each such case, the Company shall reduce the total
number of Registrable Securities to be registered on behalf of such Investor, until such time as the Staff or the SEC does
not require such identification or until such Investor accepts such identification and the manner thereof. Any reduction pursuant to this
paragraph will first reduce all Registrable Securities other than those issued pursuant to the Securities Purchase Agreement. In
the event of any reduction in Registrable Securities pursuant to this paragraph, an affected Investor shall have the right to
require, upon delivery of a written request to the Company signed by such Investor, the Company to file a registration statement within
twenty (20) days of such request (subject to any restrictions imposed by Rule 415 or required by the Staff or the SEC)
for resale by such Investor in a manner acceptable to such Investor, and the Company shall following such request cause to be and
keep effective such registration statement in the same manner as otherwise contemplated in this Agreement for registration statements
hereunder, in each case until such time as: (i) all Registrable Securities held by such Investor have been registered and sold
pursuant to an effective Registration Statement in a manner acceptable to such Investor or (ii) all Registrable Securities may
be resold by such Investor without restriction (including, without limitation, volume limitations) pursuant to Rule 144 (taking
account of any Staff position with respect to “affiliate” status) and without the need for current public information required
by Rule 144(c)(1) (or Rule 144(i)(2), if applicable) or (iii) such Investor agrees to be named as an underwriter in
any such Registration Statement in a manner acceptable to such Investor as to all Registrable Securities held by such Investor and that
have not theretofore been included in a Registration Statement under this Agreement (it being understood that the special demand right
under this sentence may be exercised by an Investor multiple times and with respect to limited amounts of Registrable Securities in order
to permit the resale thereof by such Investor as contemplated above).
(g) Piggyback
Registrations. Without limiting any obligation of the Company hereunder or under the Securities Purchase Agreement, if there is not
an effective Registration Statement covering all of the Registrable Securities or the prospectus contained therein is not available for
use and the Company shall determine to prepare and file with the SEC a registration statement or offering statement relating to an offering
for its own account or the account of others under the 1933 Act of any of its equity securities (other than on Form F-4 or Form S-8
(each as promulgated under the 1933 Act) or their then equivalents relating to equity securities to be issued solely in connection with
any acquisition of any entity or business or equity securities issuable in connection with the Company’s share option or other employee
benefit plans), then the Company shall deliver to each Investor a written notice of such determination and, if within fifteen (15)
days after the date of the delivery of such notice, any such Investor shall so request in writing, the Company shall include in such registration
statement or offering statement all or any part of such Registrable Securities such Investor requests to be registered; provided, however,
the Company shall not be required to register any Registrable Securities pursuant to this Section 2(g) that are eligible for
resale pursuant to Rule 144 without restriction (including, without limitation, volume restrictions) and without the need for current
public information required by Rule 144(c)(1) (or Rule 144(i)(2), if applicable) or that are the subject of a then-effective
Registration Statement.
(h) Allocation
of Registrable Securities. The initial number of Registrable Securities included in any Registration Statement and any increase in
the number of Registrable Securities included therein shall be allocated pro rata among the Investors based on the number of Registrable
Securities held by each Investor at the time such Registration Statement covering such initial number of Registrable Securities or increase
thereof is declared effective by the SEC. In the event that an Investor sells or otherwise transfers any of such Investor’s Registrable
Securities, each transferee or assignee (as the case may be) that becomes an Investor shall be allocated a pro rata portion of the then-remaining
number of Registrable Securities included in such Registration Statement for such transferor or assignee (as the case may be). Any Ordinary
Shares included in a Registration Statement and which remain allocated to any Person which ceases to hold any Registrable Securities covered
by such Registration Statement shall be allocated to the remaining Investors, pro rata based on the number of Registrable Securities then
held by such Investors which are covered by such Registration Statement.
(i) No
Inclusion of Other Securities. Except for the securities described on Schedule A attached hereto (subject to reduction in full before
any reduction of Registrable Securities to be included on any Registration Statement, if applicable), the Company shall in no event include
any securities other than Registrable Securities on any Registration Statement filed in accordance herewith without the prior written
consent of the Required Holders, except where the Investor requests to exercise the piggyback registration rights pursuant to Section 2(g).
Until the Applicable Date (as defined in the Securities Purchase Agreement), the Company shall not enter into any agreement providing
any registration rights to any of its security holders, except as otherwise permitted under the Securities Purchase Agreement.
3. Related
Obligations.
The Company shall use its
best efforts to effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof, and,
pursuant thereto, the Company shall have the following obligations:
(a) The
Company shall promptly prepare and file with the SEC a Registration Statement with respect to all the Registrable Securities (but in no
event later than the applicable Filing Deadline) and use its best efforts to cause such Registration Statement to become effective as
soon as practicable after such filing (but in no event later than the Effectiveness Deadline). Subject to Allowable Grace Periods, the
Company shall keep each Registration Statement effective (and the prospectus contained therein available for use) pursuant to Rule 415
for resales by the Investors on a delayed or continuous basis at then-prevailing market prices (and not fixed prices) at all times until
the earlier of (i) the date as of which all of the Investors may sell all of the Registrable Securities required to be covered by
such Registration Statement (disregarding any reduction pursuant to Section 2(f)) without restriction pursuant to Rule 144 (including,
without limitation, volume restrictions) and without the need for current public information required by Rule 144(c)(1) (or
Rule 144(i)(2), if applicable) or (ii) the date on which the Investors shall have sold all of the Registrable Securities covered
by such Registration Statement (the “Registration Period”). Notwithstanding anything to the contrary contained in this
Agreement, the Company shall ensure that, when filed and at all times while effective, each Registration Statement (including, without
limitation, all amendments and supplements thereto) and the prospectus (including, without limitation, all amendments and supplements
thereto) used in connection with such Registration Statement (1) shall not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein, or necessary to make the statements therein (in the case of prospectuses, in the
light of the circumstances in which they were made) not misleading and (2) will disclose (whether directly or through incorporation
by reference to other SEC filings to the extent permitted) all material information regarding the Company and its securities. The Company
shall submit to the SEC, within one (1) Business Day after the later of the date that (i) the Company learns that no review
of a particular Registration Statement will be made by the Staff or that the Staff has no further comments on a particular Registration
Statement (as the case may be) and (ii) the consent of Legal Counsel is obtained pursuant to Section 3(c) (which consent
shall be immediately sought), a request for acceleration of effectiveness of such Registration Statement to a time and date not later
than twenty-four (24) hours after the submission of such request. The Company shall respond in writing to comments made by the SEC
in respect of a Registration Statement as soon as practicable, but in no event later than fifteen (15) days after the receipt of comments
by or notice from the SEC that an amendment is required in order for a Registration Statement to be declared effective.
(b) Subject
to Section 3(r) of this Agreement, the Company shall prepare and file with the SEC such amendments (including, without limitation,
post-effective amendments) and supplements to each Registration Statement and the prospectus used in connection with each such Registration
Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep each
such Registration Statement effective at all times during the Registration Period for such Registration Statement, and, during such period,
comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company required to be
covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance
with the intended methods of disposition by the seller or sellers thereof as set forth in such Registration Statement; provided, however,
by 8:30 a.m. (New York time) on the Business Day immediately following each Effective Date, the Company shall file with the SEC in
accordance with Rule 424(b) under the 1933 Act the final prospectus to be used in connection with sales pursuant to the applicable
Registration Statement (whether or not such a prospectus is technically required by such rule). In the case of amendments and supplements
to any Registration Statement which are required to be filed pursuant to this Agreement (including, without limitation, pursuant to this
Section 3(b)) by reason of the Company filing a report on Form 6-K, Form 20-F or any analogous report under the Securities
Exchange Act of 1934, as amended (the “1934 Act”), the Company shall, if permitted under the applicable rules and
regulations of the SEC, have incorporated such report by reference into such Registration Statement, if applicable, or shall file such
amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company
to amend or supplement such Registration Statement.
(c) The
Company shall (A) permit Legal Counsel and legal counsel for each other Investor to review and comment upon (i) each Registration
Statement at least five (5) Business Days prior to its filing with the SEC and (ii) all amendments and supplements to each Registration
Statement (including, without limitation, the prospectus contained therein) (except for Annual Reports on Form 20-F, Report of Foreign
Issuer on Form 6-K, and any similar or successor reports) within a reasonable number of days prior to their filing with the SEC,
and (B) not file any Registration Statement or amendment or supplement thereto in a form to which Legal Counsel or any legal counsel
for any other Investor reasonably objects. The Company shall not submit a request for acceleration of the effectiveness of a Registration
Statement or any amendment or supplement thereto or to any prospectus contained therein without the prior consent of Legal Counsel, which
consent shall not be unreasonably withheld. The Company shall promptly furnish to Legal Counsel and legal counsel for each other Investor,
without charge, (i) copies of any correspondence from the SEC or the Staff to the Company or its representatives relating to each
Registration Statement, provided that such correspondence shall not contain any material, non-public information regarding the Company
or any of its Subsidiaries (as defined in the Securities Purchase Agreement), (ii) after the same is prepared and filed with the
SEC, one (1) copy of each Registration Statement and any amendment(s) and supplement(s) thereto, including, without limitation,
financial statements and schedules, all documents incorporated therein by reference, if requested by an Investor, and all exhibits and
(iii) upon the effectiveness of each Registration Statement, one (1) copy of the prospectus included in such Registration Statement
and all amendments and supplements thereto. The Company shall reasonably cooperate with Legal Counsel and legal counsel for each other
Investor in performing the Company’s obligations pursuant to this Section 3.
(d) The
Company shall promptly furnish to each Investor whose Registrable Securities are included in any Registration Statement, without charge,
(i) after the same is prepared and filed with the SEC, at least one (1) copy of each Registration Statement and any amendment(s) and
supplement(s) thereto, including, without limitation, financial statements and schedules, all documents incorporated therein by reference,
if requested by an Investor, all exhibits and each preliminary prospectus, (ii) upon the effectiveness of each Registration Statement,
ten (10) copies of the prospectus included in such Registration Statement and all amendments and supplements thereto (or such
other number of copies as such Investor may reasonably request from time to time) and (iii) such other documents, including, without
limitation, copies of any preliminary or final prospectus, as such Investor may reasonably request from time to time in order to facilitate
the disposition of the Registrable Securities owned by such Investor.
(e) The
Company shall use its best efforts to (i) register and qualify, unless an exemption from registration and qualification applies,
the resale by Investors of the Registrable Securities covered by a Registration Statement under such other securities or “blue sky”
laws of all applicable jurisdictions in the United States, (ii) prepare and file in those jurisdictions, such amendments (including,
without limitation, post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain
the effectiveness thereof during the Registration Period, (iii) take such other actions as may be necessary to maintain such registrations
and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or
advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, the Company shall not be required in
connection therewith or as a condition thereto to (x) qualify to do business in any jurisdiction where it would not otherwise be
required to qualify but for this Section 3(e), (y) subject itself to general taxation in any such jurisdiction, or (z) file
a general consent to service of process in any such jurisdiction. The Company shall promptly notify Legal Counsel, legal counsel for each
other Investor and each Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the
suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky”
laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such
purpose.
(f) The
Company shall notify Legal Counsel, legal counsel for each other Investor and each Investor in writing of the happening of any event,
as promptly as practicable after becoming aware of such event, as a result of which the prospectus included in a Registration Statement,
as then in effect, may include an untrue statement of a material fact or omission to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (provided that
in no event shall such notice contain any material, non-public information regarding the Company or any of its Subsidiaries), and, subject
to Section 3(r), promptly prepare a supplement or amendment to such Registration Statement and such prospectus contained therein
to correct such untrue statement or omission and deliver ten (10) copies of such supplement or amendment to Legal Counsel, legal
counsel for each other Investor and each Investor (or such other number of copies as Legal Counsel, legal counsel for each other Investor
or such Investor may reasonably request). The Company shall also promptly notify Legal Counsel, legal counsel for each other Investor
and each Investor in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, when
a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to
Legal Counsel, legal counsel for each other Investor and each Investor by e-mail on the same day of such effectiveness and by overnight
mail), and when the Company receives written notice from the SEC that a Registration Statement or any post-effective amendment will be
reviewed by the SEC, (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus
or related information, (iii) of the Company’s reasonable determination that a post-effective amendment to a Registration Statement
would be appropriate; and (iv) of the receipt of any request by the SEC or any other federal or state governmental authority for
any additional information relating to the Registration Statement or any amendment or supplement thereto or any related prospectus. The
Company shall respond as promptly as practicable to any comments received from the SEC with respect to each Registration Statement or
any amendment thereto (it being understood and agreed that the Company’s response to any such comments shall be delivered to the
SEC no later than fifteen (15) Business Days after the receipt thereof).
(g) The
Company shall (i) use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of each Registration
Statement or the use of any prospectus contained therein, or the suspension of the qualification, or the loss of an exemption from qualification,
of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal
of such order or suspension at the earliest possible moment and (ii) notify Legal Counsel, legal counsel for each other Investor
and each Investor who holds Registrable Securities of the issuance of such order and the resolution thereof or its receipt of actual notice
of the initiation or threat of any proceeding for such purpose.
(h) If
any Investor may be required under applicable securities law to be described in any Registration Statement as an underwriter and such
Investor consents to so being named an underwriter, at the request of any Investor, the Company shall furnish to such Investor, on the
date of the effectiveness of such Registration Statement and thereafter from time to time on such dates as an Investor may reasonably
request (i) a letter, dated such date, from the Company’s independent certified public accountants in form and substance as
is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to the
Investors, and (ii) an opinion, dated as of such date, of counsel representing the Company for purposes of such Registration Statement,
in form, scope and substance as is customarily given in an underwritten public offering, addressed to the Investors.
(i) If
any Investor may be required under applicable securities law to be described in any Registration Statement as an underwriter and such
Investor consents to so being named an underwriter, upon the written request of such Investor, the Company shall make available for inspection
by (i) such Investor, (ii) legal counsel for such Investor and (iii) one (1) firm of accountants or other agents retained
by such Investor (collectively, the “Inspectors”), all pertinent financial and other records, and pertinent corporate
documents and properties of the Company (collectively, the “Records”), as shall be reasonably deemed necessary by each
Inspector, and cause the Company’s officers, directors and employees to supply all information which any Inspector may reasonably
request; provided, however, each Inspector shall agree in writing to hold in strict confidence and not to make any disclosure (except
to such Investor) or use of any Record or other information which the Company’s board of directors determines in good faith to be
confidential, and of which determination the Inspectors are so notified, unless (1) the disclosure of such Records is necessary to
avoid or correct a misstatement or omission in any Registration Statement or is otherwise required under the 1933 Act, (2) the release
of such Records is ordered pursuant to a final, non-appealable subpoena or order from a court or government body of competent jurisdiction,
or (3) the information in such Records has been made generally available to the public other than by disclosure in violation of this
Agreement or any other Transaction Document (as defined in the Securities Purchase Agreement). Such Investor agrees that it shall, upon
learning that disclosure of such Records is sought in or by a court or governmental body of competent jurisdiction or through other means,
give prompt notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of, or
to obtain a protective order for, the Records deemed confidential. Nothing herein (or in any other confidentiality agreement between the
Company and such Investor, if any) shall be deemed to limit any Investor’s ability to sell Registrable Securities in a manner which
is otherwise consistent with applicable laws and regulations.
(j) The
Company shall hold in confidence and not make any disclosure of information concerning an Investor provided to the Company unless (i) disclosure
of such information is necessary to comply with federal or state securities laws, (ii) the disclosure of such information is necessary
to avoid or correct a misstatement or omission in any Registration Statement or is otherwise required to be disclosed in such Registration
Statement pursuant to the 1933 Act, (iii) the release of such information is ordered pursuant to a subpoena or other final, non-appealable
order from a court or governmental body of competent jurisdiction, or (iv) such information has been made generally available to
the public other than by disclosure in violation of this Agreement or any other Transaction Document. The Company agrees that it shall,
upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent
jurisdiction or through other means, give prompt written notice to such Investor and allow such Investor, at such Investor’s expense,
to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
(k) Without
limiting any obligation of the Company under the Securities Purchase Agreement, the Company shall use its best efforts either to (i) cause
all of the Registrable Securities covered by each Registration Statement to be listed on each securities exchange on which securities
of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted
under the rules of such exchange, (ii) secure designation and quotation of all of the Registrable Securities covered by each
Registration Statement on an Eligible Market (as defined in the Securities Purchase Agreement), or (iii) if, despite the Company’s
best efforts to satisfy the preceding clauses (i) or (ii) the Company is unsuccessful in satisfying the preceding clauses
(i) or (ii), without limiting the generality of the foregoing, to use its best efforts to arrange for at least two market makers
to register with the Financial Industry Regulatory Authority (“FINRA”) as such with respect to such Registrable Securities.
In addition, the Company shall cooperate with each Investor and any broker or dealer through which any such Investor proposes to sell
its Registrable Securities in effecting a filing with FINRA pursuant to FINRA Rule 5110 as requested by such Investor. The Company
shall pay all fees and expenses in connection with satisfying its obligations under this Section 3(k).
(l) The
Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, facilitate the
timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered
pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts (as the case may be) as the Investors
may reasonably request from time to time and registered in such names as the Investors may request.
(m) If
requested by an Investor, the Company shall as soon as practicable after receipt of notice from such Investor and subject to Section 3(r) hereof,
(i) incorporate in a prospectus supplement or post-effective amendment such information as an Investor reasonably requests to be
included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect
to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering
of the Registrable Securities to be sold in such offering; (ii) make all required filings of such prospectus supplement or post-effective
amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) supplement
or make amendments to any Registration Statement or prospectus contained therein if reasonably requested by an Investor holding any Registrable
Securities.
(n) The
Company shall use its best efforts to cause the Registrable Securities covered by a Registration Statement to be registered with or approved
by such other governmental agencies or authorities as may be necessary to consummate the disposition of such Registrable Securities.
(o) The
Company shall make generally available to its security holders as soon as practical, but not later than ninety (90) days after the close
of the period covered thereby, an earnings statement (in form complying with, and in the manner provided by, the provisions of Rule 158
under the 1933 Act) covering a twelve-month period beginning not later than the first day of the Company’s fiscal quarter next following
the applicable Effective Date of each Registration Statement.
(p) The
Company shall otherwise use its best efforts to comply with all applicable rules and regulations of the SEC in connection with any
registration hereunder.
(q) Within
one (1) Business Day after a Registration Statement which covers Registrable Securities is declared effective by the SEC, the Company
shall deliver, and shall cause legal counsel for the Company to deliver, to the transfer agent for such Registrable Securities (with copies
to the Investors whose Registrable Securities are included in such Registration Statement) confirmation that such Registration Statement
has been declared effective by the SEC in the form attached hereto as Exhibit A.
(r) Notwithstanding
anything to the contrary herein (but subject to the last sentence of this Section 3(r)), at any time after the Effective Date of
a particular Registration Statement, the Company may delay the disclosure of material, non-public information concerning the Company or
any of its Subsidiaries the disclosure of which at the time is not, in the good faith opinion of the board of directors of the Company,
in the best interest of the Company and, in the opinion of counsel to the Company, otherwise required (a “Grace Period”),
provided that the Company shall promptly notify the Investors in writing of the (i) existence of material, non-public information
giving rise to a Grace Period (provided that in each such notice the Company shall not disclose the content of such material, non-public
information to any of the Investors) and the date on which such Grace Period will begin and (ii) date on which such Grace Period
ends, provided further that (I) no Grace Period shall exceed ten (10) consecutive days and during any three hundred sixty five
(365) day period all such Grace Periods shall not exceed an aggregate of thirty (30) days, (II) the first day of any Grace Period
must be at least five (5) Trading Days after the last day of any prior Grace Period and (III) no Grace Period may exist
during the sixty (60) Trading Day period immediately following the Effective Date of such Registration Statement (provided that such sixty
(60) Trading Day period shall be extended by the number of Trading Days during such period and any extension thereof contemplated by this
proviso during which such Registration Statement is not effective or the prospectus contained therein is not available for use) (each,
an “Allowable Grace Period”). For purposes of determining the length of a Grace Period above, such Grace Period shall
begin on and include the date the Investors receive the notice referred to in clause (i) above and shall end on and include the later
of the date the Investors receive the notice referred to in clause (ii) above and the date referred to in such notice. The provisions
of Section 3(g) hereof shall not be applicable during the period of any Allowable Grace Period. Upon expiration of each Grace
Period, the Company shall again be bound by the first sentence of Section 3(f) with respect to the information giving rise thereto
unless such material, non-public information is no longer applicable. Notwithstanding anything to the contrary contained in this Section 3(r),
the Company shall cause its transfer agent to deliver unlegended Ordinary Shares to a transferee of an Investor in accordance with the
terms of the Securities Purchase Agreement in connection with any sale of Registrable Securities with respect to which such Investor has
entered into a contract for sale, and delivered a copy of the prospectus included as part of the particular Registration Statement to
the extent applicable, prior to such Investor’s receipt of the notice of a Grace Period and for which the Investor has not yet settled.
(s) The
Company shall take all other reasonable actions necessary to expedite and facilitate disposition by each Investors of its Registrable
Securities pursuant to each Registration Statement.
(t) Neither
the Company nor any Subsidiary or affiliate thereof shall identify any Investor as an underwriter in any public disclosure or filing with
the SEC, the Principal Market or any Eligible Market and any Buyer being deemed an underwriter by the SEC shall not relieve the Company
of any obligations it has under this Agreement or any other Transaction Document (as defined in the Securities Purchase Agreement); provided,
however, that the foregoing shall not prohibit the Company from including the disclosure found in the "Plan of Distribution"
section attached hereto as Exhibit B in the Registration Statement.
(u) Neither
the Company nor any of its Subsidiaries has entered, as of the date hereof, nor shall the Company or any of its Subsidiaries, on or after
the date of this Agreement, enter into any agreement with respect to its securities, that would have the effect of impairing the rights
granted to the Buyers in this Agreement or otherwise conflicts with the provisions hereof.
4. Obligations
of the Investors.
(a) At
least five (5) Business Days prior to the first anticipated filing date of each Registration Statement, the Company shall notify
each Investor in writing of the information the Company requires from each such Investor with respect to such Registration Statement.
It shall be a condition precedent to the obligations of the Company to complete the registration pursuant to this Agreement with respect
to the Registrable Securities of a particular Investor that such Investor shall furnish to the Company such information regarding itself,
the Registrable Securities held by it and the intended method of disposition of the Registrable Securities held by it, as shall be reasonably
required to effect and maintain the effectiveness of the registration of such Registrable Securities and shall execute such documents
in connection with such registration as the Company may reasonably request.
(b) Each
Investor, by such Investor’s acceptance of the Registrable Securities, agrees to cooperate with the Company as reasonably requested
by the Company in connection with the preparation and filing of each Registration Statement hereunder, unless such Investor has notified
the Company in writing of such Investor’s election to exclude all of such Investor’s Registrable Securities from such Registration
Statement.
(c) Each
Investor agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3(g) or
the first sentence of 3(f), such Investor will immediately discontinue disposition of Registrable Securities pursuant to any Registration
Statement(s) covering such Registrable Securities until such Investor’s receipt of the copies of the supplemented or amended
prospectus contemplated by Section 3(g) or the first sentence of Section 3(f) or receipt of notice that no supplement
or amendment is required. Notwithstanding anything to the contrary in this Section 4(c), the Company shall cause its transfer agent
to deliver unlegended Ordinary Shares to a transferee of an Investor in accordance with the terms of the Securities Purchase Agreement
in connection with any sale of Registrable Securities with respect to which such Investor has entered into a contract for sale prior to
the Investor’s receipt of a notice from the Company of the happening of any event of the kind described in Section 3(g) or
the first sentence of Section 3(f) and for which such Investor has not yet settled.
5. Expenses
of Registration.
All reasonable expenses, other
than underwriting discounts and commissions, incurred in connection with registrations, filings or qualifications pursuant to Sections 2
and 3, including, without limitation, all registration, listing and qualifications fees, printers and accounting fees, FINRA filing fees
(if any) and fees and disbursements of counsel for the Company shall be paid by the Company. The Company shall reimburse Legal Counsel
for its fees and disbursements in connection with registration, filing or qualification pursuant to Sections 2 and 3 of this Agreement
which amount shall be limited to $2,500 for each such registration, filing or qualification.
6. Indemnification.
(a) To
the fullest extent permitted by law, the Company will, and hereby does, indemnify, hold harmless and defend each Investor and each of
its directors, officers, shareholders, members, partners, employees, agents, advisors, representatives (and any other Persons with a functionally
equivalent role of a Person holding such titles notwithstanding the lack of such title or any other title) and each Person, if any, who
controls such Investor within the meaning of the 1933 Act or the 1934 Act and each of the directors, officers, shareholders, members,
partners, employees, agents, advisors, representatives (and any other Persons with a functionally equivalent role of a Person holding
such titles notwithstanding the lack of such title or any other title) of such controlling Persons (each, an “Indemnified Person”),
against any losses, obligations, claims, damages, liabilities, contingencies, judgments, fines, penalties, charges, costs (including,
without limitation, court costs, reasonable attorneys’ fees and costs of defense and investigation), amounts paid in settlement
or expenses, joint or several, (collectively, “Claims”) incurred in investigating, preparing or defending any action,
claim, suit, inquiry, proceeding, investigation or appeal taken from the foregoing by or before any court or governmental, administrative
or other regulatory agency, body or the SEC, whether pending or threatened, whether or not an Indemnified Person is or may be a party
thereto (“Indemnified Damages”), to which any of them may become subject insofar as such Claims (or actions or proceedings,
whether commenced or threatened, in respect thereof) arise out of or are based upon: (i) any untrue statement or alleged untrue statement
of a material fact in a Registration Statement or any post-effective amendment thereto or in any filing made in connection with the qualification
of the offering under the securities or other “blue sky” laws of any jurisdiction in which Registrable Securities are offered
(“Blue Sky Filing”), or the omission or alleged omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) any untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus if used prior to the effective date of such Registration Statement, or contained in the final
prospectus (as amended or supplemented, if the Company files any amendment thereof or supplement thereto with the SEC) or the omission
or alleged omission to state therein any material fact necessary to make the statements made therein, in light of the circumstances under
which the statements therein were made, not misleading or (iii) any violation or alleged violation by the Company of the 1933 Act,
the 1934 Act, any other law, including, without limitation, any state securities law, or any rule or regulation thereunder relating
to the offer or sale of the Registrable Securities pursuant to a Registration Statement or (iv) any violation of this Agreement (the
matters in the foregoing clauses (i) through (iv) being, collectively, “Violations”). Subject to Section 6(c),
the Company shall reimburse the Indemnified Persons, promptly as such expenses are incurred and are due and payable, for any legal fees
or other reasonable expenses incurred by them in connection with investigating or defending any such Claim. Notwithstanding anything to
the contrary contained herein, the indemnification agreement contained in this Section 6(a): (i) shall not apply to a Claim
by an Indemnified Person arising out of or based upon a Violation which occurs in reliance upon and in conformity with information furnished
in writing to the Company by such Indemnified Person for such Indemnified Person expressly for use in connection with the preparation
of such Registration Statement or any such amendment thereof or supplement thereto, if such prospectus was timely made available by the
Company pursuant to Section 3(d); and (ii) shall not apply to amounts paid in settlement of any Claim if such settlement is
effected without the prior written consent of the Company, which consent shall not be unreasonably withheld or delayed. Such indemnity
shall remain in full force and effect regardless of any investigation made by or on behalf of the Indemnified Person and shall survive
the transfer of any of the Registrable Securities by any of the Investors pursuant to Section 9.
(b) In
connection with any Registration Statement in which an Investor is participating, such Investor agrees to severally and not jointly indemnify,
hold harmless and defend, to the same extent and in the same manner as is set forth in Section 6(a), the Company, each of its directors,
each of its officers who signs the Registration Statement and each Person, if any, who controls the Company within the meaning of the
1933 Act or the 1934 Act (each, an “Indemnified Party”), against any Claim or Indemnified Damages to which any of them
may become subject, under the 1933 Act, the 1934 Act or otherwise, insofar as such Claim or Indemnified Damages arise out of or are based
upon any Violation, in each case, to the extent, and only to the extent, that such Violation occurs in reliance upon and in conformity
with written information furnished to the Company by such Investor expressly for use in connection with such Registration Statement; and,
subject to Section 6(c) and the below provisos in this Section 6(b), such Investor will reimburse an Indemnified Party
any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such Claim;
provided, however, the indemnity agreement contained in this Section 6(b) and the agreement with respect to contribution contained
in Section 7 shall not apply to amounts paid in settlement of any Claim if such settlement is effected without the prior written
consent of such Investor, which consent shall not be unreasonably withheld or delayed, provided further that such Investor shall be liable
under this Section 6(b) for only that amount of a Claim or Indemnified Damages as does not exceed the net proceeds to such Investor
as a result of the applicable sale of Registrable Securities pursuant to such Registration Statement. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of such Indemnified Party and shall survive the transfer of any
of the Registrable Securities by any of the Investors pursuant to Section 9.
(c) Promptly
after receipt by an Indemnified Person or Indemnified Party (as the case may be) under this Section 6 of notice of the commencement
of any action or proceeding (including, without limitation, any governmental action or proceeding) involving a Claim, such Indemnified
Person or Indemnified Party (as the case may be) shall, if a Claim in respect thereof is to be made against any indemnifying party under
this Section 6, deliver to the indemnifying party a written notice of the commencement thereof, and the indemnifying party shall
have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly
noticed, to assume control of the defense thereof with counsel mutually satisfactory to the indemnifying party and the Indemnified Person
or the Indemnified Party (as the case may be); provided, however, an Indemnified Person or Indemnified Party (as the case may be) shall
have the right to retain its own counsel with the fees and expenses of such counsel to be paid by the indemnifying party if: (i) the
indemnifying party has agreed in writing to pay such fees and expenses; (ii) the indemnifying party shall have failed promptly to
assume the defense of such Claim and to employ counsel reasonably satisfactory to such Indemnified Person or Indemnified Party (as the
case may be) in any such Claim; or (iii) the named parties to any such Claim (including, without limitation, any impleaded parties)
include both such Indemnified Person or Indemnified Party (as the case may be) and the indemnifying party, and such Indemnified Person
or such Indemnified Party (as the case may be) shall have been advised by counsel that a conflict of interest is likely to exist if the
same counsel were to represent such Indemnified Person or such Indemnified Party and the indemnifying party (in which case, if such Indemnified
Person or such Indemnified Party (as the case may be) notifies the indemnifying party in writing that it elects to employ separate counsel
at the expense of the indemnifying party, then the indemnifying party shall not have the right to assume the defense thereof and such
counsel shall be at the expense of the indemnifying party, provided further that in the case of clause (iii) above the indemnifying
party shall not be responsible for the reasonable fees and expenses of more than one (1) separate legal counsel for such Indemnified
Person or Indemnified Party (as the case may be). The Indemnified Party or Indemnified Person (as the case may be) shall reasonably cooperate
with the indemnifying party in connection with any negotiation or defense of any such action or Claim by the indemnifying party and shall
furnish to the indemnifying party all information reasonably available to the Indemnified Party or Indemnified Person (as the case may
be) which relates to such action or Claim. The indemnifying party shall keep the Indemnified Party or Indemnified Person (as the case
may be) reasonably apprised at all times as to the status of the defense or any settlement negotiations with respect thereto. No indemnifying
party shall be liable for any settlement of any action, claim or proceeding effected without its prior written consent; provided, however,
the indemnifying party shall not unreasonably withhold, delay or condition its consent. No indemnifying party shall, without the prior
written consent of the Indemnified Party or Indemnified Person (as the case may be), consent to entry of any judgment or enter into any
settlement or other compromise which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party or Indemnified Person (as the case may be) of a release from all liability in respect to such Claim or litigation, and
such settlement shall not include any admission as to fault on the part of the Indemnified Party. Following indemnification as provided
for hereunder, the indemnifying party shall be subrogated to all rights of the Indemnified Party or Indemnified Person (as the case may
be) with respect to all third parties, firms or corporations relating to the matter for which indemnification has been made. The failure
to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action shall not relieve
such indemnifying party of any liability to the Indemnified Person or Indemnified Party (as the case may be) under this Section 6,
except to the extent that the indemnifying party is materially and adversely prejudiced in its ability to defend such action.
(d) The
indemnification required by this Section 6 shall be made by periodic payments of the amount thereof during the course of the investigation
or defense, as and when bills are received or Indemnified Damages are incurred.
(e) The
indemnity and contribution agreements contained herein shall be in addition to (i) any cause of action or similar right of the Indemnified
Party or Indemnified Person against the indemnifying party or others, and (ii) any liabilities the indemnifying party may be subject
to pursuant to the law.
7. Contribution.
To the extent any indemnification
by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect
to any amounts for which it would otherwise be liable under Section 6 to the fullest extent permitted by law; provided, however:
(i) no contribution shall be made under circumstances where the maker would not have been liable for indemnification under the fault
standards set forth in Section 6 of this Agreement, (ii) no Person involved in the sale of Registrable Securities which Person
is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) in connection with such sale
shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation;
and (iii) contribution by any seller of Registrable Securities shall be limited in amount to the amount of net proceeds received
by such seller from the applicable sale of such Registrable Securities pursuant to such Registration Statement. Notwithstanding the provisions
of this Section 7, no Investor shall be required to contribute, in the aggregate, any amount in excess of the amount by which the
net proceeds actually received by such Investor from the applicable sale of the Registrable Securities subject to the Claim exceeds the
amount of any damages that such Investor has otherwise been required to pay, or would otherwise be required to pay under Section 6(b),
by reason of such untrue or alleged untrue statement or omission or alleged omission.
8. Reports
Under the 1934 Act.
With a view to making available
to the Investors the benefits of Rule 144, the Company agrees to:
(a) make
and keep public information available, as those terms are understood and defined in Rule 144;
(b) file
with the SEC in a timely manner all reports and other documents required of the Company under the 1933 Act and the 1934 Act so long as
the Company remains subject to such requirements (it being understood and agreed that nothing herein shall limit any obligations of the
Company under the Securities Purchase Agreement) and the filing of such reports and other documents is required for the applicable provisions
of Rule 144; and
(c) furnish
to each Investor so long as such Investor owns Registrable Securities, promptly upon request, (i) a written statement by the Company,
if true, that it has complied with the reporting, submission and posting requirements of Rule 144, the 1933 Act and the 1934 Act,
(ii) a copy of the most recent annual or quarterly report of the Company and such other reports and documents so filed by the Company
with the SEC if such reports are not publicly available via EDGAR, and (iii) such other information as may be reasonably requested
to permit the Investors to sell such securities pursuant to Rule 144 without registration.
9. Assignment
of Registration Rights.
All or any portion of the
rights under this Agreement shall be automatically assignable by each Investor to any transferee or assignee (as the case may be) of all
or any portion of such Investor’s Registrable Securities, Notes or Warrants if: (i) such Investor agrees in writing with such
transferee or assignee (as the case may be) to assign all or any portion of such rights, and a copy of such agreement is furnished to
the Company within a reasonable time after such transfer or assignment (as the case may be); (ii) the Company is, within a reasonable
time after such transfer or assignment (as the case may be), furnished with written notice of (a) the name and address of such transferee
or assignee (as the case may be), and (b) the securities with respect to which such registration rights are being transferred or
assigned (as the case may be); (iii) immediately following such transfer or assignment (as the case may be) the further disposition
of such securities by such transferee or assignee (as the case may be) is restricted under the 1933 Act or applicable state securities
laws if so required; (iv) at or before the time the Company receives the written notice contemplated by clause (ii) of this
sentence such transferee or assignee (as the case may be) agrees in writing with the Company to be bound by all of the provisions contained
herein; (v) such transfer or assignment (as the case may be) shall have been made in accordance with the applicable requirements
of the Securities Purchase Agreement, the Notes and the Warrants (as the case may be); and (vi) such transfer or assignment (as the
case may be) shall have been conducted in accordance with all applicable federal and state securities laws.
10. Amendment
of Registration Rights.
Provisions of this Agreement
may be amended and the observance thereof may be waived (either generally or in a particular instance and either retroactively or prospectively),
only with the written consent of the Company and the Required Holders; provided that any such amendment or waiver that complies with the
foregoing, but that disproportionately, materially and adversely affects the rights and obligations of any Investor relative to the comparable
rights and obligations of the other Investors shall require the prior written consent of such adversely affected Investor. Any amendment
or waiver effected in accordance with this Section 10 shall be binding upon each Investor and the Company, provided that no such
amendment shall be effective to the extent that it (1) applies to less than all of the holders of Registrable Securities or (2) imposes
any obligation or liability on any Investor without such Investor’s prior written consent (which may be granted or withheld in such
Investor’s sole discretion). No waiver shall be effective unless it is in writing and signed by an authorized representative of
the waiving party. No consideration shall be offered or paid to any Person to amend or consent to a waiver or modification of any provision
of this Agreement unless the same consideration (other than the reimbursement of legal fees) also is offered to all of the parties to
this Agreement.
11. Miscellaneous.
(a) Solely
for purposes of this Agreement, a Person is deemed to be a holder of Registrable Securities whenever such Person owns, or is deemed to
own, of record such Registrable Securities. If the Company receives conflicting instructions, notices or elections from two or more Persons
with respect to the same Registrable Securities, the Company shall act upon the basis of instructions, notice or election received from
such record owner of such Registrable Securities.
(b) Any
notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement must be in writing
and will be deemed to have been delivered: (i) upon receipt, when delivered personally; (ii) upon receipt, when sent by electronic
mail (provided that such sent email is kept on file (whether electronically or otherwise) by the sending party and the sending party does
not receive an automatically generated message from the recipient’s email server that such e-mail could not be delivered to such
recipient); or (iii) one (1) Business Day after deposit with an overnight courier service with next day delivery specified,
in each case, properly addressed to the party to receive the same. The mailing addresses and e-mail addresses for such communications
shall be:
If to the Company:
Bit Origin Ltd
27F, Samsung Hub
3 Church Street, Singapore
Telephone: (347) 556-4747
Attention: Chief Executive Officer
Email: ir@bitorigin.io
With a copy (for informational purposes only) to:
Ortoli Rosenstadt LLP
366 Madison Avenue, 3rd Floor
New York, NY 10017
Telephone: (212) 588-0022
Attention: Mengji “Jason” Ye
Email: jye@orllp.legal
If to the Transfer Agent:
Securities Transfer Corporation
2901 N Dallas Parkway
Suite 380
Plano, Texas 75093
Telephone: (469) 633-0101
Attention: Matthew Smith
Email: smith@stctransfer.com
If to Legal Counsel:
Kelley Drye & Warren LLP
3 World Trade Center
175 Greenwich Street
New York, NY 10007
Telephone: (212) 808-7540
Facsimile: (212) 808-7897
Attention: Michael A. Adelstein, Esq.
E-mail: madelstein@kelleydrye.com
If to a Buyer, to its mailing address and/or email
address set forth on the Schedule of Buyers attached to the Securities Purchase Agreement, with copies to such Buyer’s representatives
as set forth on the Schedule of Buyers, or to such other mailing address and/or email address and/or to the attention of such other Person
as the recipient party has specified by written notice given to each other party five (5) days prior to the effectiveness of such
change, provided that Kelley Drye & Warren LLP shall only be provided notices sent to the lead investor. Written confirmation
of receipt (A) given by the recipient of such notice, consent, waiver or other communication, (B) mechanically or electronically
generated by the sender’s e-mail containing the time, date and recipient’s e-mail or (C) provided by a courier or overnight
courier service shall be rebuttable evidence of personal service, receipt by e-mail or receipt from a nationally recognized overnight
delivery service in accordance with clause (i), (ii) or (iii) above, respectively.
(c) Failure
of any party to exercise any right or remedy under this Agreement or otherwise, or delay by a party in exercising such right or remedy,
shall not operate as a waiver thereof. The Company and each Investor acknowledge and agree that irreparable damage would occur in the
event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached.
It is accordingly agreed that each party hereto shall be entitled to an injunction or injunctions to prevent or cure breaches of the provisions
of this Agreement by any other party hereto and to enforce specifically the terms and provisions hereof (without the necessity of showing
economic loss and without any bond or other security being required), this being in addition to any other remedy to which any party may
be entitled by law or equity.
(d) All
questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by the internal laws
of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of
New York or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of New York.
Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in The City of New York, Borough
of Manhattan, for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue
of such suit, action or proceeding is improper. The Company hereby appoints Cogency Global Inc., as its agent for service of process in
New York. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action
or proceeding by mailing a copy thereof to such party at the address for such 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 manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE
TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF
THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY. The choice of the laws of the State of New York as the governing law of this Agreement
is a valid choice of law and would be recognized and given effect to in any action brought before a court of competent jurisdiction in
the Cayman Islands, except for those laws (i) which such court considers to be procedural in nature, (ii) which are revenue
or penal laws or (iii) the application of which would be inconsistent with public policy, as such term is interpreted under the laws
of the Cayman Islands. The Company or any of their respective properties, assets or revenues does not have any right of immunity under
Cayman Islands or New York law, from any legal action, suit or proceeding, from the giving of any relief in any such legal action, suit
or proceeding, from set-off or counterclaim, from the jurisdiction of any Cayman Islands, New York or United States federal court, from
service of process, attachment upon or prior to judgment, or attachment in aid of execution of judgment, or from execution of a judgment,
or other legal process or proceeding for the giving of any relief or for the enforcement of a judgment, in any such court, with respect
to its obligations, liabilities or any other matter under or arising out of or in connection with this Agreement; and, to the extent that
the Company, or any of its properties, assets or revenues may have or may hereafter become entitled to any such right of immunity in any
such court in which proceedings may at any time be commenced, the Company hereby waives such right to the extent permitted by law and
hereby consents to such relief and enforcement as provided in this Agreement and the other Transaction Documents.
(e) If
any provision of this Agreement is prohibited by law or otherwise determined to be invalid or unenforceable by a court of competent jurisdiction,
the provision that would otherwise be prohibited, invalid or unenforceable shall be deemed amended to apply to the broadest extent that
it would be valid and enforceable, and the invalidity or unenforceability of such provision shall not affect the validity of the remaining
provisions of this Agreement so long as this Agreement as so modified continues to express, without material change, the original intentions
of the parties as to the subject matter hereof and the prohibited nature, invalidity or unenforceability of the provision(s) in question
does not substantially impair the respective expectations or reciprocal obligations of the parties or the practical realization of the
benefits that would otherwise be conferred upon the parties. The parties will endeavor in good faith negotiations to replace the prohibited,
invalid or unenforceable provision(s) with a valid provision(s), the effect of which comes as close as possible to that of the prohibited,
invalid or unenforceable provision(s).
(f) This
Agreement, the other Transaction Documents, the schedules and exhibits attached hereto and thereto and the instruments referenced herein
and therein constitute the entire agreement among the parties hereto and thereto solely with respect to the subject matter hereof and
thereof. There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein and therein.
This Agreement, the other Transaction Documents, the schedules and exhibits attached hereto and thereto and the instruments referenced
herein and therein supersede all prior agreements and understandings among the parties hereto solely with respect to the subject matter
hereof and thereof; provided, however, nothing contained in this Agreement or any other Transaction Document shall (or shall be deemed
to) (i) have any effect on any agreements any Investor has entered into with the Company or any of its Subsidiaries prior to the
date hereof with respect to any prior investment made by such Investor in the Company, (ii) waive, alter, modify or amend in any
respect any obligations of the Company or any of its Subsidiaries or any rights of or benefits to any Investor or any other Person in
any agreement entered into prior to the date hereof between or among the Company and/or any of its Subsidiaries and any Investor and all
such agreements shall continue in full force and effect or (iii) limit any obligations of the Company under any of the other Transaction
Documents.
(g) Subject
to compliance with Section 9 (if applicable), this Agreement shall inure to the benefit of and be binding upon the permitted successors
and assigns of each of the parties hereto. This Agreement is not for the benefit of, nor may any provision hereof be enforced by, any
Person, other than the parties hereto, their respective permitted successors and assigns and the Persons referred to in Sections 6
and 7 hereof.
(h) The
headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. Unless the
context clearly indicates otherwise, each pronoun herein shall be deemed to include the masculine, feminine, neuter, singular and plural
forms thereof. The terms “including,” “includes,” “include” and words of like import shall be construed
broadly as if followed by the words “without limitation.” The terms “herein,” “hereunder,” “hereof”
and words of like import refer to this entire Agreement instead of just the provision in which they are found.
(i) This
Agreement may be executed in two or more identical counterparts, each of which shall be deemed an original, but all of which shall be
considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the
other party. In the event that any signature is delivered by facsimile transmission or by an email which contains a portable document
format (.pdf) file of an executed signature page, such signature page 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 signature page were an original thereof.
(j) Each
party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such
other agreements, certificates, instruments and documents as any other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.
(k) The
language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent and no rules of
strict construction will be applied against any party. Notwithstanding anything to the contrary set forth in Section 10, terms used
in this Agreement but defined in the other Transaction Documents shall have the meanings ascribed to such terms on the Initial Closing
Date in such other Transaction Documents unless otherwise consented to in writing by each Investor.
(l) All
consents and other determinations required to be made by the Investors pursuant to this Agreement shall be made, unless otherwise specified
in this Agreement, by the Required Holders, determined as if all of the outstanding Notes then held by the Investors have been converted
for Registrable Securities without regard to any limitations on redemption, amortization and/or conversion of the Notes and the outstanding
Warrants then held by Investors have been exercised for Registrable Securities without regard to any limitations on exercise of the Warrants.
(m) This
Agreement is intended for the benefit of the parties hereto and their respective permitted successors and assigns, and is not for the
benefit of, nor may any provision hereof be enforced by, any other Person.
(n) The
obligations of each Investor under this Agreement and the other Transaction Documents are several and not joint with the obligations of
any other Investor, and no Investor shall be responsible in any way for the performance of the obligations of any other Investor under
this Agreement or any other Transaction Document. Nothing contained herein or in any other Transaction Document, and no action taken by
any Investor pursuant hereto or thereto, shall be deemed to constitute the Investors as, and the Company acknowledges that the Investors
do not so constitute, a partnership, an association, a joint venture or any other kind of group or entity, or create a presumption that
the Investors are in any way acting in concert or as a group or entity with respect to such obligations or the transactions contemplated
by the Transaction Documents or any matters, and the Company acknowledges that the Investors are not acting in concert or as a group,
and the Company shall not assert any such claim, with respect to such obligations or the transactions contemplated by this Agreement or
any of the other the Transaction Documents. Each Investor shall be entitled to independently protect and enforce its rights, including,
without limitation, the rights arising out of this Agreement or out of any other Transaction Documents, and it shall not be necessary
for any other Investor to be joined as an additional party in any proceeding for such purpose. The use of a single agreement with respect
to the obligations of the Company contained herein was solely in the control of the Company, not the action or decision of any Investor,
and was done solely for the convenience of the Company and not because it was required or requested to do so by any Investor. It is expressly
understood and agreed that each provision contained in this Agreement and in each other Transaction Document is between the Company and
an Investor, solely, and not between the Company and the Investors collectively and not between and among Investors.
[signature page follows]
IN WITNESS WHEREOF, each Buyer and the Company
have caused their respective signature page to this Registration Rights Agreement to be duly executed as of the date first written
above.
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COMPANY: |
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BIT ORIGIN LTD |
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By: |
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Name: |
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Title: |
IN WITNESS WHEREOF, each Buyer and the Company
have caused their respective signature page to this Registration Rights Agreement to be duly executed as of the date first written
above.
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BUYERS: |
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By: |
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SCHEDULE A
[ ]
EXHIBIT A
FORM OF NOTICE OF EFFECTIVENESS
OF REGISTRATION STATEMENT
______________________
______________________
______________________
Attention: _____________
Re: Bit
Origin Ltd
Ladies and Gentlemen:
[We are][I am] counsel to Bit
Origin Ltd, an exempted company incorporated under the laws of the Cayman Islands (the “Company”), and have represented
the Company in connection with that certain Securities Purchase Agreement (the “Securities Purchase Agreement”) entered
into by and among the Company and the buyers named therein (collectively, the “Holders”) pursuant to which the Company
issued to the Holders senior secured convertible notes (the “Notes”) convertible into the Company’s ordinary
shares, $0.30 par value per share (the “Ordinary Shares”), and warrants exercisable for Ordinary Shares (the “Warrants”).
Pursuant to the Securities Purchase Agreement, the Company also has entered into a Registration Rights Agreement with the Holders (the
“Registration Rights Agreement”) pursuant to which the Company agreed, among other things, to register the Registrable
Securities (as defined in the Registration Rights Agreement), including the Ordinary Shares issuable upon conversion of the Notes and
exercise of the Warrants, under the Securities Act of 1933, as amended (the “1933 Act”). In connection with the Company’s
obligations under the Registration Rights Agreement, on ____________ ___, 20__, the Company filed a Registration Statement on Form [F-1][F-3]
(File No. 333-_____________) (the “Registration Statement”) with the Securities and Exchange Commission (the “SEC”)
relating to the Registrable Securities which names each of the Holders as a selling shareholder thereunder.
In connection with the foregoing,
[we][I] advise you that [a member of the SEC’s staff has advised [us][me] by telephone that [the SEC has entered an order declaring
the Registration Statement effective under the 1933 Act at [ENTER TIME OF EFFECTIVENESS] on [ENTER DATE OF EFFECTIVENESS]] [an order declaring
the Registration Statement effective under the 1933 Act at [ENTER TIME OF EFFECTIVENESS] on [ENTER DATE OF EFFECTIVENESS]] has been posted
on the web site of the SEC at www.sec.gov] and [we][I] have no knowledge, after a review of information posted on the website of the SEC
at http://www.sec.gov/litigation/stoporders.shtml, that any stop order suspending its effectiveness has been issued or that any proceedings
for that purpose are pending before, or threatened by, the SEC and the Registrable Securities are available for resale under the 1933
Act pursuant to the Registration Statement.
This letter shall serve as
our standing opinion to you that the Ordinary Shares underlying the Notes and Warrants are freely transferable by the Holders pursuant
to the Registration Statement. You need not require further letters from us to effect any future legend-free issuance or reissuance of
such Ordinary Shares to the Holders as contemplated by the Company’s Irrevocable Transfer Agent Instructions dated _________ __,
20__.
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Very truly yours, |
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[ISSUER’S COUNSEL] |
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By: |
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[ ] | |
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[OTHER BUYERS] | |
EXHIBIT B
SELLING SHAREHOLDERS
The ordinary shares being
offered by the selling shareholders are those issuable to the selling shareholders upon conversion of the notes and exercise of the warrants.
For additional information regarding the issuance of the notes and the warrants, see “Private Placement of Notes and Warrants”
above. We are registering the ordinary shares in order to permit the selling shareholders to offer the shares for resale from time to
time. Except for the ownership of the notes and the warrants issued pursuant to the Securities Purchase Agreement, the selling shareholders
have not had any material relationship with us within the past three years.
The table below lists the
selling shareholders and other information regarding the beneficial ownership (as determined under Section 13(d) of the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder) of the ordinary shares held by each of the selling shareholders.
The second column lists the number of ordinary shares beneficially owned by the selling shareholders, based on their respective ownership
of ordinary shares, notes and warrants, as of ________, 20__, assuming conversion of the notes and exercise of the warrants held by each
such selling shareholder on that date but taking account of any limitations on conversion and exercise set forth therein.
The third column lists the
ordinary shares being offered by this prospectus by the selling shareholders and does not take in account any limitations on (i) conversion
of the notes set forth therein or (ii) exercise of the warrants set forth therein.
In accordance with the terms
of a registration rights agreement with the holders of the notes and the warrants, this prospectus generally covers the resale of the
sum of (i) 100% of the maximum number of ordinary shares issued or issuable pursuant to the notes, including payment of interest
on the notes through [DATE], and (ii) 116% of the maximum number of ordinary shares issued or issuable upon exercise of the warrants,
in each case, determined as if the outstanding notes (including interest on the notes through [DATE]) and warrants were converted or exercised
(as the case may be) in full (without regard to any limitations on conversion or exercise contained therein solely for the purpose of
such calculation) at the $[ ] floor price of the notes or the exercise price of the warrants then in effect (as the case may be) calculated
as of the trading day immediately preceding the date this registration statement was initially filed with the SEC. Because the conversion
price and alternate conversion price of the notes and the exercise price of the warrants may be adjusted, the number of shares that will
actually be issued may be more or less than the number of shares being offered by this prospectus. The fourth column assumes the sale
of all of the shares offered by the selling shareholders pursuant to this prospectus.
Under the terms of the notes
and the warrants, a selling shareholder may not convert the notes or exercise the warrants to the extent (but only to the extent) such
selling shareholder or any of its affiliates would beneficially own a number of shares of our ordinary shares which would exceed 4.99%
of the outstanding shares of the Company. The number of shares in the second column reflects these limitations. The selling shareholders
may sell all, some or none of their shares in this offering. See “Plan of Distribution.”
Name of Selling Shareholder |
Number of Ordinary
Shares Owned Prior to
Offering |
Maximum Number of
Ordinary Shares to be Sold
Pursuant to this Prospectus |
Number of Ordinary
Shares of Owned After
Offering |
| [ ] (1) |
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| [OTHER BUYERS] |
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PLAN OF DISTRIBUTION
We are registering the ordinary
shares issuable upon conversion of the notes and exercise of the warrants to permit the resale of these ordinary shares by the holders
of the notes and warrants from time to time after the date of this prospectus. We will not receive any of the proceeds from the sale by
the selling shareholders of the ordinary shares, although we will receive the exercise price of any warrants not exercised by the selling
shareholders on a cashless exercise basis. We will bear all fees and expenses incident to our obligation to register the ordinary shares.
The selling shareholders may
sell all or a portion of the ordinary shares held by them and offered hereby from time to time directly or through one or more underwriters,
broker-dealers or agents. If the ordinary shares are sold through underwriters or broker-dealers, the selling shareholders will be responsible
for underwriting discounts or commissions or agent’s commissions. The ordinary shares may be sold in one or more transactions at
fixed prices, at prevailing market prices at the time of the sale, at varying prices determined at the time of sale or at negotiated prices.
These sales may be effected in transactions, which may involve crosses or block transactions, pursuant to one or more of the following
methods:
| ● | on any national securities exchange or quotation service on which the securities may be listed or quoted
at the time of sale; |
| ● | in the over-the-counter market; |
| ● | in transactions otherwise than on these exchanges or systems or in the over-the-counter market; |
| ● | through the writing or settlement of options, whether such options are listed on an options exchange or
otherwise; |
| ● | ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; |
| ● | block trades in which the broker-dealer will attempt to sell the shares as agent but may position and
resell a portion of the block as principal to facilitate the transaction; |
| ● | purchases by a broker-dealer as principal and resale by the broker-dealer for its account; |
| ● | an exchange distribution in accordance with the rules of the applicable exchange; |
| ● | privately negotiated transactions; |
| ● | short sales made after the date the Registration Statement is declared effective by the SEC; |
| ● | broker-dealers may agree with a selling security holder to sell a specified number of such shares at a
stipulated price per share; |
| ● | a combination of any such methods of sale; and |
| ● | any other method permitted pursuant to applicable law. |
The selling shareholders may
also sell ordinary shares under Rule 144 promulgated under the Securities Act of 1933, as amended, if available, rather than under
this prospectus. In addition, the selling shareholders may transfer the ordinary shares by other means not described in this prospectus.
If the selling shareholders effect such transactions by selling ordinary shares to or through underwriters, broker-dealers or agents,
such underwriters, broker-dealers or agents may receive commissions in the form of discounts, concessions or commissions from the selling
shareholders or commissions from purchasers of the ordinary shares for whom they may act as agent or to whom they may sell as principal
(which discounts, concessions or commissions as to particular underwriters, broker-dealers or agents may be in excess of those customary
in the types of transactions involved). In connection with sales of the ordinary shares or otherwise, the selling shareholders may enter
into hedging transactions with broker-dealers, which may in turn engage in short sales of the ordinary shares in the course of hedging
in positions they assume. The selling shareholders may also sell ordinary shares short and deliver ordinary shares covered by this prospectus
to close out short positions and to return borrowed shares in connection with such short sales. The selling shareholders may also loan
or pledge ordinary shares to broker-dealers that in turn may sell such shares.
The selling shareholders may
pledge or grant a security interest in some or all of the notes, warrants or ordinary shares owned by them and, if they default in the
performance of their secured obligations, the pledgees or secured parties may offer and sell the ordinary shares from time to time pursuant
to this prospectus or any amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities
Act amending, if necessary, the list of selling shareholders to include the pledgee, transferee or other successors in interest as selling
shareholders under this prospectus. The selling shareholders also may transfer and donate the ordinary shares in other circumstances in
which case the transferees, donees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this
prospectus.
To the extent required by
the Securities Act and the rules and regulations thereunder, the selling shareholders and any broker-dealer participating in the
distribution of the ordinary shares may be deemed to be “underwriters” within the meaning of the Securities Act, and any commission
paid, or any discounts or concessions allowed to, any such broker-dealer may be deemed to be underwriting commissions or discounts under
the Securities Act. At the time a particular offering of the ordinary shares is made, a prospectus supplement, if required, will be distributed,
which will set forth the aggregate amount of ordinary shares being offered and the terms of the offering, including the name or names
of any broker-dealers or agents, any discounts, commissions and other terms constituting compensation from the selling shareholders and
any discounts, commissions or concessions allowed or re-allowed or paid to broker-dealers.
Under the securities laws
of some states, the ordinary shares may be sold in such states only through registered or licensed brokers or dealers. In addition, in
some states the ordinary shares may not be sold unless such shares have been registered or qualified for sale in such state or an exemption
from registration or qualification is available and is complied with.
There can be no assurance
that any selling shareholder will sell any or all of the ordinary shares registered pursuant to the registration statement, of which this
prospectus forms a part.
The selling shareholders and
any other person participating in such distribution will be subject to applicable provisions of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder, including, without limitation, to the extent applicable, Regulation M of
the Exchange Act, which may limit the timing of purchases and sales of any of the ordinary shares by the selling shareholders and any
other participating person. To the extent applicable, Regulation M may also restrict the ability of any person engaged in the distribution
of the ordinary shares to engage in market-making activities with respect to the ordinary shares. All of the foregoing may affect the
marketability of the ordinary shares and the ability of any person or entity to engage in market-making activities with respect to the
ordinary shares.
We will pay all expenses of
the registration of the ordinary shares pursuant to the registration rights agreement, estimated to be $[ ] in total, including,
without limitation, Securities and Exchange Commission filing fees and expenses of compliance with state securities or “blue sky”
laws; provided, however, a selling shareholder will pay all underwriting discounts and selling commissions, if any. We will indemnify
the selling shareholders against liabilities, including some liabilities under the Securities Act in accordance with the registration
rights agreements or the selling shareholders will be entitled to contribution. We may be indemnified by the selling shareholders against
civil liabilities, including liabilities under the Securities Act that may arise from any written information furnished to us by the selling
shareholder specifically for use in this prospectus, in accordance with the related registration rights agreements or we may be entitled
to contribution.
Once sold under the registration
statement, of which this prospectus forms a part, the ordinary shares will be freely tradable in the hands of persons other than our affiliates.
Exhibit 10.3
EXECUTION
VERSION
SECURITY
AND PLEDGE AGREEMENT
SECURITY
AND PLEDGE AGREEMENT, dated as of ______, 2023 (this “Agreement”), made by Bit Origin Ltd, a Cayman
Islands exempted company, with offices located at 27F, Samsung Hub, 3 Church Street, Singapore 049483 (the “Company”),
and each of the undersigned direct and indirect Domestic Subsidiaries (as defined below) of the Company from time to time, if any (each
a “Grantor” and together with the Company, collectively, the “Grantors”), in favor of [ ], with
office located at c/o [ ], in its capacity as collateral agent (together with its successors and assignees, in such capacity, the “Collateral
Agent”) for the Noteholders (as defined below) party to the Securities Purchase Agreement (as defined below).
W
I T N E S S E T H:
WHEREAS, the Company is party
to that certain Securities Purchase Agreement, dated as of December 7, 2023, (as amended, modified, supplemented, extended, renewed,
restated or replaced from time to time in accordance with the terms thereof, the “Securities Purchase Agreement”)
by and among the Company and each party listed as a “Buyer” on the Schedule of Buyers attached thereto (each a “Buyer”
and collectively, the “Buyers”), pursuant to which the Company shall be required to sell, and the Buyers shall purchase
or have the right to purchase, the “Notes” issued pursuant thereto (as such Notes may be amended, modified, supplemented,
extended, renewed, restated or replaced from time to time in accordance with the terms thereof, collectively, the “Notes”);
WHEREAS, certain Grantors (other
than the Company) from time to time (each a “Guarantor” and collectively, the “Guarantors”) may
execute and deliver one or more guarantees (each, a “Guaranty” and collectively, the “Guaranties”)
in form and substance acceptable to and in favor of the Collateral Agent, for the ratable benefit of itself and the Noteholders, with
respect to the Company’s obligations under the Securities Purchase Agreement, the Notes and the other Transaction Documents;
WHEREAS, it is a condition
precedent to the Buyers’ obligation to purchase the Notes that the Grantors shall have executed and delivered to the Collateral
Agent this Agreement providing for the grant to the Collateral Agent, for the ratable benefit of itself and the Noteholders, of a valid,
enforceable, and perfected security interest in all personal property of each Grantor to secure all of the Company’s obligations
under the Transaction Documents and the Guarantors’ obligations under the Guaranties, as applicable; and
WHEREAS, the Grantors are Affiliates
that are part of a common enterprise such that each Grantor will derive substantial direct and indirect financial and other benefits
from the consummation of the transactions contemplated under the Transaction Documents and, accordingly, the consummation of such transactions
are in the best interests of each Grantor;
NOW, THEREFORE, in consideration
of the premises and the agreements herein and in order to induce the Buyers to perform under the Securities Purchase Agreement, each
Grantor agrees with the Collateral Agent, for the ratable benefit of the Collateral Agent and the Noteholders, as follows:
Section 1. Definitions.
(a) Reference
is hereby made to the Securities Purchase Agreement and the Notes for a statement of the terms thereof. All terms used in this Agreement
and the recitals hereto which are defined in the Securities Purchase Agreement, the Notes or in the Code, and which are not otherwise
defined herein shall have the same meanings herein as set forth therein; provided that terms used herein which are defined in
the Code on the date hereof shall continue to have the same meaning notwithstanding any replacement or amendment of the Code except as
the Collateral Agent may otherwise determine in its sole and absolute discretion.
(b) Without
limiting the generality of, and subject to the proviso at the end of, Section 1(a) of this Agreement, the following terms shall
have the respective meanings provided for in the Code: “Accounts”, “Account Debtor”, “Cash Proceeds”,
“Certificate of Title”, “Chattel Paper”, “Commercial Tort Claim”, “Deposit Account”,
“Documents”, “Electronic Chattel Paper”, “Equipment”, “Fixtures”, “General Intangibles”,
“Goods”, “Instruments”, “Inventory”, “Investment Property”, “Letter-of-Credit Rights”,
“Noncash Proceeds”, “Payment Intangibles”, “Proceeds”, “Promissory Notes”, “Security”,
“Record”, “Security Account”, “Software”, “Supporting Obligations” and “Uncertificated
Securities”.
(c) As
used in this Agreement, the following terms shall have the respective meanings indicated below, such meanings to be applicable equally
to both the singular and plural forms of such terms:
“Affiliate”
of any Person means any other Person which, directly or indirectly, controls or is controlled by or is under common control with such
Person and any officer or director of such Person. Without limiting the generality of the foregoing, a Person shall be deemed to be “controlled
by” any other Person if such Person possesses, directly or indirectly, power to vote 10% or more of the securities (on a fully
diluted basis) having ordinary voting power for the election of directors or managers or power to direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.
“Bankruptcy Code”
means Chapter 11 of Title 11 of the United States Code, 11 U.S.C §§ 101 et seq. (or other applicable bankruptcy, insolvency
or similar laws).
“Bankruptcy Event
of Default” means any Event of Default under Section 4(a)(viii) of the Note.
“Business
Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized or required
by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee” or any
other similar orders or restrictions or the closure of any physical branch locations at the direction of any Governmental Authority so
long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York generally are
open for use by customers on such day.
“Buyer”
or “Buyers” shall have the meaning set forth in the recitals hereto.
“Capital Stock”
means (i) with respect to any Person that is a corporation or a company, any and all shares, interests, participations or other
equivalents (however designated and whether or not voting) of corporate stock (including, without limitation, any warrants, options,
rights or other securities exercisable or convertible into equity interests or securities of such Person), and (ii) with respect
to any Person that is not an individual, a corporation or a company, any and all partnership, membership, trust or other equity interests
of such Person.
“Closing Date”
means the date the Company initially issues the Notes pursuant to the terms of the Securities Purchase Agreement.
“Code”
means Articles 8 or 9 of the Uniform Commercial Code as in effect from time to time in the State of New York; provided that, if
perfection or the effect of perfection or non-perfection or the priority of any security interest in any Collateral is governed by the
Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, “Code” means the Uniform Commercial
Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect
of perfection or non-perfection or priority.
“Collateral”
shall have the meaning set forth in Section 3(a) of this Agreement.
“Collateral Agent”
shall have the meaning set forth in the preamble hereto.
“Company” shall have the meaning
set forth in the preamble hereto.
“Controlled Account
Agreement” means a deposit account control agreement or securities account control agreement with respect to a Pledged Account,
pursuant to which the Collateral Agent is granted control over such Pledged Account in a manner that perfects its security interest in
such Pledged Account under applicable law, all in form and substance satisfactory to the Collateral Agent, as the same may be amended,
modified, supplemented, extended, renewed, restated or replaced from time to time.
“Controlled Account
Bank” shall have the meaning set forth in Section 6(i) of this Agreement.
“Controlled Accounts”
means the Deposit Accounts, Securities Accounts, and/or Foreign Currency Controlled Account of the Grantors listed on Schedule
IV attached hereto.
“Copyright Licenses”
means all licenses, contracts or other agreements, whether written or oral, naming any Grantor as licensee or licensor and providing
for the grant of any right to use or sell any works covered by any Copyright (including, without limitation, all Copyright Licenses set
forth in Schedule II hereto).
“Copyrights”
means all domestic and foreign copyrights, whether registered or not, including, without limitation, all copyright rights throughout
the universe (whether now or hereafter arising) in any and all media (whether now or hereafter developed), in and to all original works
of authorship fixed in any tangible medium of expression, acquired or used by any Grantor (including, without limitation, all copyrights
described in Schedule II hereto), all applications, registrations and recordings thereof (including, without limitation, applications,
registrations and recordings in the United States Copyright Office or in any similar office or agency of the United States or any other
country or any political subdivision thereof), and all reissues, divisions, continuations, continuations in part and extensions or renewals
thereof.
“Domestic Subsidiary”
means any Subsidiary other than a Foreign Subsidiary.
“Event of Default”
shall have the meaning set forth in Section 4(a) of the Notes.
“Excluded Collateral”
means such portion of the voting Capital Stock of any Foreign Subsidiary in excess of 65% of the issued and outstanding voting Capital
Stock of such Foreign Subsidiary at any time the pledging of more than 65% of the total outstanding voting Capital Stock of such Foreign
Subsidiary would result in a material adverse tax consequence to a Grantor.
“Foreign Currency
Controlled Accounts” means any Controlled Account of a Grantor or any of its Subsidiaries holding a deposit denominated in
a currency other than United States dollar.
“Foreign Subsidiary”
means any Subsidiary of a Grantor organized under the laws of a jurisdiction other than the United States, any of the states thereof,
Puerto Rico or the District of Columbia.
“GAAP”
means U.S. generally accepted accounting principles consistently applied.
“Governmental Authority”
means any nation or government, any Federal, state, city, town, municipality, county, local, foreign or other political subdivision thereof
or thereto and any department, commission, board, bureau, court, tribunal, instrumentality, agency or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
“Guaranteed Obligations”
shall have the meaning set forth in Section 2 of each Guaranty.
“Guarantor”
or “Guarantors” shall have the meaning set forth in the recitals hereto.
“Guaranty”
or “Guaranties” shall have the meaning set forth in the recitals hereto.
“Insolvency Proceeding”
means any proceeding commenced by or against any Person under any provision of the Bankruptcy Code or under any other bankruptcy or insolvency
law or law for the relief of debtors, any proceeding relating to assignments for the benefit of creditors, formal or informal moratoria,
compositions, or extensions generally with creditors, or any proceeding seeking reorganization, arrangement, or other similar relief.
“Intellectual Property”
means, collectively, all intellectual property rights and assets, and all rights, interests and protections that are associated with,
similar to, or required for the exercise of, any of the foregoing, however arising, under the applicable laws of any jurisdiction throughout
the world, whether registered or unregistered, including, without limitation, any and all: (a) Trademarks; (b) internet domain
names, whether or not trademarks, registered in any top-level domain by any authorized private registrar or Governmental Authority, web
addresses, web pages, websites and related content; (c) accounts with YouTube, LinkedIn, Twitter, Instagram, Facebook and other
social media companies and the content found thereon (to the extent that such accounts and content are transferable pursuant to the terms,
conditions, and policies of each applicable social media platform); (d) Copyrights; (e) Patents; and (f) business and
technical information, databases, data collections and other confidential and proprietary information and all rights therein.
“Intellectual Property
Security Agreement” means the Intellectual Property Security Agreement required to be delivered pursuant to Section 6(h)(i) of
this Agreement, substantially in the form attached hereto as Exhibit A.
“Licenses”
means, collectively, the Copyright Licenses, the Trademark Licenses and the Patent Licenses.
“Lien”
means any mortgage, lien, pledge, charge, security interest, adverse claim or other encumbrance upon or in any property or assets.
“Noteholders”
means, at any time, the holders of the Notes at such time.
“Notes”
shall have the meaning set forth in the recitals hereto.
“Obligations”
shall have the meaning set forth in Section 4 of this Agreement.
“Paid in Full”
or “Payment in Full” means the indefeasible payment in full in cash of all of the Obligations.
“Patent Licenses”
means all licenses, contracts or other agreements, whether written or oral, naming any Grantor as licensee or licensor and providing
for the grant of any right to manufacture, use or sell any invention covered by any Patent (including, without limitation, all Patent
Licenses set forth in Schedule II hereto).
“Patents”
means all domestic and foreign letters patent, design patents, utility patents, industrial designs, inventions, trade secrets, ideas,
concepts, methods, techniques, processes, proprietary information, technology, know-how, formulae, rights of publicity and other general
intangibles of like nature, now existing or hereafter acquired (including, without limitation, all domestic and foreign letters patent,
design patents, utility patents, industrial designs, inventions, trade secrets, ideas, concepts, methods, techniques, processes, proprietary
information, technology, know-how and formulae described in Schedule II hereto), all applications, registrations and recordings
thereof (including, without limitation, applications, registrations and recordings in the United States Patent and Trademark Office,
or in any similar office or agency of the United States or any other country or any political subdivision thereof), and all reissues,
reexaminations, divisions, continuations, continuations in part and extensions or renewals thereof.
“Perfection Requirement”
or “Perfection Requirements” shall have the meaning set forth in Section 5(j) of this Agreement.
“Permitted Liens”
shall have the meaning set forth in the Notes.
“Person”
means an individual, corporation, company, limited liability company, partnership, association, joint-stock company, trust, unincorporated
organization, joint venture or other enterprise or entity or Governmental Authority.
“Pledged Accounts”
means all of each Grantor’s right, title and interest in all of its Deposit Accounts and Securities Accounts (in all cases, including,
without limitation, all Controlled Accounts and Foreign Currency Control Accounts).
“Pledged Collateral”
shall have the meaning set forth in Section 2(a).
“Pledged Debt”
shall have the meaning set forth in Section 2(a).
“Pledged Entity”
means, each Person listed from time to time on Schedule IV hereto as a “Pledged Entity,” together with each other
Person, any right in or interest in or to all or a portion of whose Securities or Capital Stock is acquired or otherwise owned by a Grantor
after the date hereof.
“Pledged Equity”
means all of each Grantor’s right, title and interest in and to all of the Securities and Capital Stock now or hereafter owned
by such Grantor (including, without limitation, those interests listed opposite the name of such Grantor on Schedule IV), regardless
of class or designation, including all substitutions therefor and replacements thereof, all proceeds thereof and all rights relating
thereto, also including, without limitation, any certificates representing such Securities and/or Capital Stock, the right to receive
any certificates representing any of such Securities and/or Capital Stock, all warrants, options, subscription, share appreciation rights
and other rights, contractual or otherwise, in respect thereof, and the right to receive dividends, distributions of income, profits,
surplus, or other compensation by way of income or liquidating distributions, in cash or in kind, and cash, instruments, and other property
from time to time received, receivable, or otherwise distributed in respect of or in addition to, in substitution of, on account of,
or in exchange for any or all of the foregoing.
“Pledged Operating
Agreements” means all of each Grantor’s rights, powers and remedies under the limited liability company operating agreements
of each of the Pledged Entities that is a limited liability company, as may be amended, modified, supplemented, extended, renewed, restated
or replaced from time to time.
“Pledged Partnership
Agreements” means all of each Grantor’s rights, powers, and remedies under the general or limited partnership agreements
of each of the Pledged Entities that is a general or limited partnership, as may be amended, modified, supplemented, extended, renewed,
restated or replaced from time to time.
“Pledged Securities”
means any Promissory Notes, stock certificates, limited liability membership interests or other Securities, certificates or Instruments
now or hereafter included in the Pledged Collateral, including all Pledged Equity, Pledged Debt and all other certificates, instruments
or other documents representing or evidencing any Pledged Collateral.
“Securities Purchase
Agreement” shall have the meaning set forth in the recitals hereto.
“Subsidiary”
means any Person in which a Grantor directly or indirectly, (i) owns any of the outstanding Capital Stock or holds any
equity or similar interest of such Person or (ii) controls or operates all or any part of the business, operations or administration
of such Person, and all of the foregoing, collectively, “Subsidiaries”.
“Trademark Licenses”
means all licenses, contracts or other agreements, whether written or oral, naming any Grantor as licensor or licensee and providing
for the grant of any right concerning any Trademark, together with any goodwill connected with and symbolized by any such licenses, contracts
or agreements and the right to prepare for sale or lease and sell or lease any and all Inventory now or hereafter owned by any Grantor
and now or hereafter covered by such licenses, contracts or agreements (including, without limitation, all Trademark Licenses described
in Schedule II hereto).
“Trademarks”
means all domestic and foreign trademarks, service marks, collective marks, certification marks, trade names, business names, d/b/a’s,
assumed names, Internet domain names, trade styles, designs, logos and other source or business identifiers and all general intangibles
of like nature, now or hereafter owned, adopted, acquired or used by any Grantor (including, without limitation, all domestic and foreign
trademarks, service marks, collective marks, certification marks, trade names, business names, d/b/a’s, assumed names, Internet
domain names, trade styles, designs, logos and other source or business identifiers described in Schedule II hereto), all applications,
registrations and recordings thereof (including, without limitation, applications, registrations and recordings in the United States
Patent and Trademark Office or in any similar office or agency of the United States, any state thereof or any other country or any political
subdivision thereof), and all reissues, extensions or renewals thereof, together with all goodwill of the business symbolized by such
marks and all customer lists, formulae and other Records of any Grantor relating to the distribution of products and services in connection
with which any of such marks are used.
Section 2. Pledge
of Pledged Collateral.
(a) As
collateral security for the due and punctual payment and performance in full of the Obligations, as and when due, each Grantor hereby
assigns and pledges to the Collateral Agent, its successors and permitted assigns, and hereby grants to the Collateral Agent, its successors
and permitted assigns, for the ratable benefit of the Collateral Agent and the Noteholders, a continuing Lien on and security interest
in, all of such Grantor’s right, title and interest in, to and under all of the following, wherever located and whether now or
hereafter existing and whether now owned or hereafter acquired: (i) the Pledged Equity; (ii) all Promissory Notes, Security
and Instruments evidencing debt now owned or at any time hereafter acquired by it (including, without limitation, those listed opposite
the name of such Grantor on Schedule IV) (the “Pledged Debt”); (iii) subject to Section 2(g) and
2(h), all payments of principal or interest, dividends, distributions, cash, Promissory Notes, Securities, Instruments and
other property from time to time received, receivable or otherwise distributed in respect of, in exchange for or upon the conversion
of, and all other Proceeds received in respect of, the Pledged Equity and the Pledged Debt; (iv) all rights and privileges of such
Grantor with respect to the Securities and other property referred to in clauses (i), (ii), and (iii) above; and (v) all Proceeds
of, and Security Entitlements in respect of, any of the foregoing (the items referred to in clauses (a) through (v) above being
collectively referred to as the “Pledged Collateral”); provided that the Pledged Collateral shall not include any
item referred to in clauses (a) through (f) above if, for so long as and to the extent such item constitutes Excluded Collateral.
(b) On
the Closing Date (in the case of any Grantor that grants a Lien on any of its assets hereunder on the Closing Date) or on the date on
which it becomes a party to this Agreement pursuant to Section 6(m) (in the case of any other Grantor), each Grantor
shall deliver or cause to be delivered to the Collateral Agent any and all Pledged Securities (other than any Uncertificated Securities,
but only for so long as such Securities remain uncertificated) to the extent such Pledged Securities, in the case of Promissory Notes
and other Instruments evidencing debt, are required to be delivered pursuant to Section 2(c). Thereafter, whenever such Grantor
acquires any other Pledged Security (other than any Uncertificated Securities, but only for so long as such Uncertificated Securities
remain uncertificated), such Grantor shall promptly, and in any event within 30 days (or such longer period as the Collateral Agent
may agree to in writing), deliver or cause to be delivered to the Collateral Agent such Pledged Security as Collateral hereunder to the
extent such Pledged Securities, in the case of Promissory Notes and Instruments evidencing debt, are required to be delivered pursuant
to Section 2(c).
(c) Each
Grantor will cause all debt for borrowed money in an aggregate principal amount of $10,000 or more owed to such Grantor by any other
Person to be evidenced by a duly executed Promissory Note, and shall cause each such Promissory Note to be pledged and delivered to the
Collateral Agent, (i) on the date hereof, in the case of any such debt existing on the date hereof (or, in the case of any Grantor
that becomes a party hereto after the date hereof, on the date such Grantor becomes a party hereto, in the case of any such debt existing
on such date) or (ii) promptly following the incurrence thereof, in the case of any such debt incurred after the date hereof (or
such other date), in each case pursuant to the terms hereof.
(d) Upon
delivery to the Collateral Agent, (i) any Pledged Securities required to be delivered pursuant to Section 2(b) and/or
2(c) shall be accompanied by undated stock or note powers duly executed by the applicable Grantor in blank or other instruments
of transfer reasonably satisfactory to the Collateral Agent and by such other instruments and documents as the Collateral Agent may reasonably
request in order to effect the transfer of such Pledged Securities and (ii) all other property comprising part of the Pledged Collateral
required to be delivered pursuant to Section 2(b) and/or 2(c) shall be accompanied by undated proper instruments
of assignment duly executed by the applicable Grantor and such other instruments or documents as the Collateral Agent may reasonably
request in order to effect transfer of such Pledged Collateral. Each delivery of Pledged Securities or other Pledged Collateral shall
be accompanied by a schedule describing such Pledged Securities or Pledged Collateral, as the case may be, which schedule shall be deemed
to supplement Schedule IV and be made a part hereof; provided that failure to attach any such schedule hereto shall not
affect the validity of such pledge of such Pledged Securities. Each schedule so delivered shall supplement any prior schedules so delivered.
(e) The
assignment, pledge, Lien and security interest granted in Section 2(a) are granted as security only and shall not subject
the Collateral Agent or any Buyer to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising
out of the Pledged Collateral.
(f) If
an Event of Default shall occur and be continuing and, other than in the case of a Bankruptcy Event of Default, the Collateral Agent
shall have notified the Borrower of its intent to exercise such rights, (a) the Collateral Agent, shall have the right (in its sole
and absolute discretion) to cause each of the Pledged Securities to be transferred of record into the name of the Collateral Agent or
into the name of its nominee (as pledgee or as sub-agent) or the name of the applicable Grantor, endorsed or assigned in blank or in
favor of the Collateral Agent and (b) to the extent permitted by the documentation governing such Pledged Securities and applicable
law, the Collateral Agent shall have the right to exchange the certificates representing Pledged Securities for certificates of smaller
or larger denominations for any purpose consistent with this Agreement. Each Grantor will promptly give to the Collateral Agent copies
of any material notices received by it with respect to Pledged Securities registered in the name of such Grantor. Each Grantor will take
any and all actions reasonably requested by the Collateral Agent to facilitate compliance with this Section 2(f).
(g) Unless
and until an Event of Default shall have occurred and be continuing and, other than in the case of a Bankruptcy Event of Default, the
Collateral Agent shall have notified the Grantors that the rights of the Grantors under this Section 2(g) are being
suspended:
(i) Each Grantor
shall be entitled to exercise any and all voting and/or other consensual rights and powers inuring to an owner of Pledged Collateral
or any part thereof for any purpose consistent with the terms of this Agreement and the other Transaction Documents.
(ii) The Collateral
Agent shall promptly execute and deliver to each Grantor, or cause to be executed and delivered to such Grantor, all such proxies, powers
of attorney and other instruments as such Grantor may reasonably request in writing for the purpose of enabling such Grantor to exercise
the voting and/or consensual rights and powers it is entitled to exercise pursuant to Section 2(g)(i), in each case as shall
be specified in such request.
(iii) Each Grantor
shall be entitled to receive and retain any and all dividends, interest, principal and other distributions paid on or distributed in
respect of the Pledged Collateral, to the extent (and only to the extent) that such dividends, interest, principal and other distributions
are permitted by, the other Transaction Documents and applicable laws; provided that any noncash dividends, interest, principal
or other distributions that would constitute Pledged Equity or Pledged Debt, whether resulting from a subdivision, combination or reclassification
of the outstanding equity interests of the issuer of any Pledged Securities or received in exchange for Pledged Securities or any part
thereof, or in redemption thereof, or as a result of any merger, consolidation, acquisition or other exchange of assets to which such
issuer may be a party or otherwise, shall be and become part of the Pledged Collateral, and, if received by any Grantor, shall be held
in trust for the benefit of the Collateral Agent and shall, to the extent required by Section 2(b) and/or 2(c) be
forthwith delivered to the Collateral Agent in the same form as so received (with any necessary endorsement or documents set forth in
Section 2(d) or as otherwise reasonably requested by the Collateral Agent). So long as no Event of Default has occurred
and is continuing, the Collateral Agent shall promptly deliver to each Grantor any Pledged Securities in its possession if requested
to be delivered to the issuer thereof in connection with any exchange or redemption of such Pledged Securities.
(h) Upon
the occurrence and during the continuance of an Event of Default and, other than in the case of a Bankruptcy Event of Default, after
the Collateral Agent shall have notified the Grantors of the suspension of the rights of the Grantors under Section 2(g)(iii),
all rights of any Grantor to dividends, interest, principal or other distributions that such Grantor is authorized to receive pursuant
to Section 2(g)(iii) shall cease, and all such rights shall thereupon become vested in the Collateral Agent, which shall
have the sole and exclusive right and authority to receive and retain such dividends, interest, principal or other distributions as part
of the Pledged Collateral, subject to Section 2(k) and the last sentence of this Section 2(h). All dividends,
interest, principal or other distributions received by any Grantor contrary to the provisions of Section 2(g) or this
Section 2(h) shall be held in trust for the benefit of the Collateral Agent and shall be forthwith delivered to the
Collateral Agent upon demand in the same form as so received (with any necessary endorsement reasonably requested by the Collateral Agent).
Any and all money and other property paid over to or received by the Collateral Agent pursuant to the provisions of Section 2(g) and/or
this Section 2(h) shall be retained by the Collateral Agent in an account to be established by the Collateral Agent
upon receipt of such money or other property, shall be held as security for the payment and performance of the Obligations and shall
be applied in accordance with the provisions of Section 8. After all Events of Default have been cured or waived, and the
Grantors have delivered to the Collateral Agent a certificate of an executive officer to such effect, the Collateral Agent shall promptly
repay to each Grantor (without interest) all dividends, interest, principal or other distributions that such Grantor would otherwise
be permitted to retain pursuant to the terms of Section 2(g)(iii) in the absence of an Event of Default and that remain
in such account.
(i) Upon
the occurrence and during the continuance of an Event of Default and, other than in the case of a Bankruptcy Event of Default, after
the Collateral Agent shall have notified the Grantors of the suspension of the rights of the Grantors under Section 2(g)(i),
all rights of any Grantor to exercise the voting and consensual rights and powers it is entitled to exercise pursuant to Section 2(g)(i),
and the obligations of the Collateral Agent under Section 2(g)(ii), shall cease, and all such rights shall thereupon become
vested in the Collateral Agent, which shall have the sole and exclusive right and authority to exercise such voting and consensual rights
and powers subject to Section 2(k) and the last sentence of this Section 2(i); provided that, the
Collateral Agent shall have the right from time to time following and during the continuance of an Event of Default to permit the Grantors
to exercise such rights. After all Events of Default have been cured or waived, and the Grantors have delivered to the Collateral Agent
a certificate of an executive officer to such effect, each Grantor shall have the exclusive right to exercise the voting and/or consensual
rights and powers that such Grantor would otherwise be entitled to exercise pursuant to the terms of Section 2(g)(i), and
the obligations of the Collateral Agent under Section 2(g)(ii) shall be reinstated.
(j) Any
notice given by the Collateral Agent to the Grantors under Section 2(f) or Section 2(g) (i) may
be given by telephone if promptly confirmed in writing, (ii) may be given with respect to one or more of the Grantors at the same
or different times and (iii) may suspend the rights of the Grantors under Section 2(g)(i) or 2(g)(iii) in
part without suspending all such rights (as specified by the Collateral Agent in its sole and absolute discretion) and without waiving
or otherwise affecting the Collateral Agent’s rights to give additional notices from time to time suspending other rights so long
as an Event of Default has occurred and is continuing.
(k) Nothing
contained in this Agreement shall be construed to make the Collateral Agent or any Buyer liable as a member of any company or limited
liability company or as a partner of any partnership, and neither the Collateral Agent nor any Buyer by virtue of this Agreement or otherwise
(except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited
liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become
the absolute or legal owner of Pledged Equity consisting of an interest in a company or a limited liability company interest or a partnership
interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent,
any Buyer, any Grantor and/or any other Person.
Section 3. Grant
of Security Interest
(a) As
collateral security for the due and punctual payment and performance in full of the Obligations, as and when due, each Grantor hereby
pledges and assigns to the Collateral Agent, its successors and permitted assigns, and hereby grants to the Collateral Agent, its successors
and permitted assigns, for the ratable benefit of the Collateral Agent and the Noteholders, a continuing Lien on and security interest
in, all of such Grantor’s right, title and interest in, to and under all personal property and assets of such Grantor, wherever
located and whether now or hereafter existing and whether now owned or hereafter acquired, of every kind, nature and description, whether
tangible or intangible (together with the Pledged Collateral, the “Collateral”), including, without limitation, the
following:
(i) all
Accounts;
(ii) all
Chattel Paper (whether tangible or Electronic Chattel Paper);
(iii) all
Commercial Tort Claims, including, without limitation, those specified on Schedule VI hereto;
(iv) all
Documents;
(v) all
Equipment;
(vi) all
Fixtures;
(vii) all
General Intangibles (including, without limitation, all Payment Intangibles);
(viii) all
Goods;
(ix) all
Instruments;
(x) all
Inventory;
(xi) all
Investment Property (and, regardless of whether classified as Investment Property under the Code, all Pledged Equity, Pledged Operating
Agreements and Pledged Partnership Agreements);
(xii) all
Intellectual Property and all Licenses;
(xiii) all
Letter-of-Credit Rights;
(xiv) all
Pledged Accounts, all cash and other property from time to time deposited therein, and all monies and property in the possession or under
the control of the Collateral Agent or any Noteholder or any Affiliate, representative, agent or correspondent of the Collateral Agent
or any such Noteholder;
(xv) all
Supporting Obligations;
(xvi) all
other tangible and intangible personal property of each Grantor (whether or not subject to the Code), including, without limitation,
all Deposit Accounts and other accounts and all cash and all investments therein, all proceeds, products, offspring, accessions, rents,
profits, income, benefits, substitutions and replacements of and to any of the property of any Grantor described in the preceding clauses
of this Section 3(a) (including, without limitation, any proceeds of insurance thereon and all causes of action, claims
and warranties now or hereafter held by each Grantor in respect of any of the items listed above), and all books, correspondence, files
and other Records, including, without limitation, all tapes, desks, cards, Software, data and computer programs in the possession or
under the control of any Grantor or any other Person from time to time acting for any Grantor, in each case, to the extent of such Grantor’s
rights therein, that at any time evidence or contain information relating to any of the property described in the preceding clauses of
this Section 3(a) or are otherwise necessary or helpful in the collection or realization thereof; and
(xvii) all
Proceeds, including all Cash Proceeds and Noncash Proceeds, and products of any and all of the foregoing Collateral;
in each case howsoever any Grantor’s interest
therein may arise or appear (whether by ownership, security interest, claim or otherwise).
(b) Notwithstanding
anything herein to the contrary, the term “Collateral” shall not include any Excluded Collateral.
(c) Each
Grantor agrees not to further encumber, or permit any other Lien to exist that encumbers, any of its Intellectual Property, including,
without limitation, any of its Copyrights, Copyright applications, Copyright registrations and like protections in each work of authorship
and derivative work, whether published or unpublished, Licenses, Patents, Patent applications and like protections, including, without
limitation, improvements, divisions, continuations, renewals, reissues, extensions, and continuations-in-part of the same, Trademarks,
service marks and, to the extent permitted under applicable law, any applications therefor, whether registered or not, and the goodwill
of the business of such Grantor connected with and symbolized thereby, know-how, operating manuals, trade secret rights, rights to unpatented
inventions, and any claims for damage by way of any past, present, or future infringement of any of the foregoing, in each case without
the Collateral Agent’s prior written consent (which consent may be withheld or given in the Collateral Agent’s sole and absolute
discretion).
(d) Each
Grantor agrees that the pledge of the shares of Capital Stock acquired by such Grantor of any and all Persons now or hereafter existing
that is a Foreign Subsidiary may be supplemented by one or more separate pledge agreements, deeds of pledge, share charges or other similar
agreements or instruments, executed and delivered by such Grantor in favor of the Collateral Agent, which agreements or instruments will
provide for the pledge of such shares of Capital Stock and perfection of the Lien on such shares in accordance with the laws of the applicable
foreign jurisdiction. With respect to such shares of Capital Stock, the Collateral Agent may, at any time and from time to time, in its
sole and absolute discretion, take such actions in such foreign jurisdictions that will result in the perfection of the Lien created
in such shares of Capital Stock in accordance with the terms of this Agreement.
(e) In
addition, to secure the due and punctual payment and performance in full of the Obligations, as and when due, and in order to induce
the Buyers as aforesaid, each Grantor hereby grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit
of the Collateral Agent and the Noteholders, a right of set-off against the property of such Grantor held by the Collateral Agent, for
itself and for the ratable benefit of the Noteholders, consisting of property described above in Section 2(a) and/or
Section 3(a) now or hereafter in the possession or custody of or in transit to the Collateral Agent, for any purpose,
including safekeeping, collection or pledge, for the account of such Grantor, or as to which such Grantor may have any right or power;
provided that such right shall only to be exercised after an Event of Default has occurred and is continuing.
Section 4. Security
for Obligations. The Lien and security interest created hereby in the Collateral constitutes continuing collateral security for all
of the following obligations, whether direct or indirect, absolute or contingent, and whether now existing or hereafter incurred (collectively,
the “Obligations”):
(a) (i) the
payment by the Company and each other Grantor, as and when due and payable (by scheduled maturity, required prepayment, acceleration,
demand or otherwise), of all amounts from time to time owing by it in respect of the Securities Purchase Agreement, this Agreement, the
Notes and the other Transaction Documents, and (ii) in the case of the Guarantors, the payment by such Guarantors, as and when due
and payable of all Guaranteed Obligations under the Guaranties, including, without limitation, in both cases, (A) all principal
of, interest, make-whole and other amounts on the Notes (including, without limitation, all interest, make-whole and other amounts that
accrues after the commencement of any Insolvency Proceeding of any Grantor, whether or not the payment of such interest is enforceable
or is allowable in such Insolvency Proceeding), and (B) all fees, interest, premiums, penalties, contract causes of action, costs,
commissions, expense reimbursements, indemnifications and all other amounts due or to become due under this Agreement or any of the Transaction
Documents; and
(b) the
due and punctual performance and observance by each Grantor of all of its other obligations from time to time existing in respect of
any of the Transaction Documents, including without limitation, with respect to any conversion or redemption rights of the Noteholders
under the Notes.
Section 5. Representations
and Warranties. Each Grantor represents and warrants as follows:
(a) Schedule
I hereto sets forth (i) the exact legal name of each Grantor, and (ii) the state or country of incorporation, organization
or formation and the organizational identification number of each Grantor in such state or country. The information set forth in Schedule
I hereto with respect to such Grantor is true and accurate in all respects. Such Grantor has not previously changed its name (or
operated under any other name), jurisdiction of incorporation or organization or organizational identification number from those set
forth in Schedule I hereto except as disclosed in Schedule I hereto.
(b) There
is no pending or, to its knowledge, written notice threatening any action, suit, proceeding or claim affecting any Grantor before any
Governmental Authority or any arbitrator, or any order, judgment or award issued by any Governmental Authority or arbitrator, in each
case, that may adversely affect the grant by any Grantor, or the perfection, of the Lien and security interest purported to be created
hereby in the Collateral, or the exercise by the Collateral Agent of any of its rights or remedies hereunder.
(c) All
Federal, state and local tax returns and other reports required by applicable law to be filed by any Grantor have been filed, or extensions
have been obtained, and all taxes, assessments and other governmental charges or levies imposed upon any Grantor or any property of any
Grantor (including, without limitation, all federal income and social security taxes on employees’ wages) and which have become
due and payable on or prior to the date hereof have been paid, except to the extent contested in good faith by proper proceedings which
stay the imposition of any penalty, fine or Lien resulting from the non-payment thereof and with respect to which adequate reserves have
been set aside for the payment thereof in accordance with GAAP.
(d) All
Equipment, Fixtures, Goods and Inventory of each Grantor now existing are, and all Equipment, Fixtures, Goods and Inventory of each Grantor
hereafter existing will be, located and/or based at the addresses specified therefor in Schedule III hereto, except that each
Grantor will give the Collateral Agent written notice of any change in the location of any such Collateral within 20 days of such change,
other than to locations set forth on Schedule III hereto (and with respect to which the Collateral Agent has filed financing
statements and otherwise fully perfected its Liens thereon). Each Grantor’s principal place of business and chief executive office,
the place where each Grantor keeps its Records concerning the Collateral and all originals of all Chattel Paper in which any Grantor
has any right, title or interest are located and will continue to be located at the addresses specified therefor in Schedule III
hereto. None of the Accounts in which any Grantor has any right, title or interest is or will be evidenced by Promissory Notes or
other Instruments.
(e) Set
forth in Schedule IV hereto is a complete and accurate list, as of the date of this Agreement, of (i) all Pledged Debt, specifying
the debtor thereof and the outstanding principal amount thereof as of the Closing Date, Securities and other Instruments in which any
Grantor has any right, title or interest, (ii) each Pledged Account of each Grantor, together with the name and address of each
institution at which each such Pledged Account is maintained, the account number for each such Pledged Account and a description of the
purpose of each such Pledged Account and (iii) the name of each Foreign Currency Controlled Account of each Grantor, together with
the name and address of each institution at which each such Foreign Currency Controlled Account is maintained and the amount of cash
or cash equivalents held in each such Foreign Currency Controlled Account. Set forth in Schedule II hereto is a complete and correct
list of each trade name used by each Grantor and the name of, and each trade name used by, each Person from which each Grantor has acquired
any substantial part of the Collateral. All of the Pledged Debt, to the best of the Grantors’ knowledge (provided that no such
knowledge qualification applies to Pledged Debt issued by a Grantor or a Subsidiary), is the legal, valid and binding obligation of the
issuer thereof, enforceable against such issuer in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance, suretyship or other similar laws and equitable principles (regardless of whether enforcement
is sought in equity or at law).
(f) Each
Grantor has delivered to the Collateral Agent complete and correct copies of each License described in Schedule II hereto, including
all schedules and exhibits thereto, which represent all of the Licenses of the Grantors existing on the date of this Agreement. Each
such License sets forth the entire agreement and understanding of the parties thereto relating to the subject matter thereof, and there
are no other agreements, arrangements or understandings, written or oral, relating to the matters covered thereby or the rights of such
Grantor or any of its Affiliates in respect thereof. Each material License now existing is, and any material License entered into in
the future will be, the legal, valid and binding obligation of the parties thereto, enforceable against such parties in accordance with
its terms. No default under any material License by any such party has occurred, nor does any defense, offset, deduction or counterclaim
exist thereunder in favor of any such party.
(g) Each
Grantor owns and controls, or otherwise possesses adequate rights to use, all of its Intellectual Property, which is the only Intellectual
Property necessary to conduct its business in substantially the same manner as conducted as of the date hereof. Schedule II hereto
sets forth a true and complete list of all Intellectual Property and Licenses owned or used by each Grantor as of the date hereof, and
applications for grant or registration of Intellectual Property. To the knowledge of each Grantor, all such Intellectual Property of
such Grantor is subsisting and in full force and effect, has not been adjudged invalid or unenforceable, is valid and enforceable and
has not been abandoned in whole or in part. Except as set forth in Schedule II, no such Intellectual Property is the subject
of any licensing or franchising agreement. Except as set forth in Schedule II, no Grantor has any knowledge of any infringement
upon or conflict with the Patent, Trademark, Copyright, trade secret rights of others and, each Grantor is not now infringing or in conflict
with any Patent, Trademark, Copyright, trade secret or similar rights of others, and to the knowledge of each Grantor, no other Person
is now infringing or in conflict in any material respect with any such properties, assets and rights owned or used by each Grantor. No
Grantor has received any notice that it is violating or has violated the Trademarks, Patents, Copyrights, inventions, trade secrets,
proprietary information and technology, know-how, formulae, rights of publicity or other intellectual property rights of any third party.
(h) Each
Grantor is and will be at all times the sole and exclusive owner of the Collateral in which such Grantor has granted a Lien and security
interest hereunder free and clear of any Liens, except for (i) Permitted Liens thereon and (ii) certain Intellectual Property
rights of the Company which is jointly owned by the Company with certain third parties as described in Schedule II hereto. No
effective financing statement or other instrument similar in effect covering all or any part of the Collateral is on file in any recording
or filing office except such as (i) may have been filed in favor of the Collateral Agent and/or the Noteholders relating to this
Agreement or the other Transaction Documents, or (ii) are intended to perfect Permitted Liens existing as of the date hereof and
disclosed on Schedule VII hereto.
(i) The
exercise by the Collateral Agent of any of its rights and remedies hereunder will not contravene any law or any contractual restriction
binding on or otherwise affecting any Grantor or any of its properties and will not result in or require the creation of any Lien, upon
or with respect to any of its properties other than as granted pursuant to this Agreement.
(j) No
authorization or approval or other action by, and no notice to or filing with, any Governmental Authority, is required for (i) the
grant by each Grantor, or the perfection, of the Lien and security interest purported to be created hereby in the Collateral, or (ii) the
exercise by the Collateral Agent of any of its rights and remedies hereunder, except for (A) the filing under the Code as in effect
in the applicable jurisdiction of the financing statements described in Schedule V hereto, all of which financing statements have
been duly filed and are in full force and effect, (B) with respect to the perfection of the security interest created hereby in
the United States Intellectual Property and Licenses, the recording of the appropriate Intellectual Property Security Agreement in the
United States Patent and Trademark Office or the United States Copyright Office, as applicable, (C) with respect to the perfection
of the security interest created hereby in foreign Intellectual Property and Licenses, registrations and filings in jurisdictions located
outside of the United States and covering rights in such jurisdictions relating to such foreign Intellectual Property and Licenses, (D) with
respect to the perfection of the security interest created hereby in any Letter-of-Credit Rights, the consent of the issuer of the applicable
letter of credit to the assignment of proceeds as provided in the Code as in effect in the applicable jurisdiction, (E) with respect
to Investment Property constituting uncertificated securities, the applicable Grantor causing the issuer thereof either (i) to register
the Collateral Agent as the registered owner of such securities or (ii) to agree in an authenticated record with such Grantor and
the Collateral Agent that such issuer will comply with instructions with respect to such securities originated by the Collateral Agent
without further consent of such Grantor, such authenticated record to be in form and substance satisfactory to the Collateral Agent,
(F) with respect to Investment Property constituting certificated securities or instruments, such items to be delivered to and held
by or on behalf of the Collateral Agent pursuant hereto in suitable form for transfer by delivery or accompanied by duly executed instruments
of transfer or assignment in blank, all in form and substance satisfactory to the Collateral Agent, (G) with respect to any action
that may be necessary to obtain control of Collateral constituting Electronic Chattel Paper or Letter of Credit Rights, the taking of
such actions, and (H) the Collateral Agent having possession of all Documents, Chattel Paper, Instruments and cash constituting
Collateral (subclauses (A) through (H) each a “Perfection Requirement” and collectively, the “Perfection
Requirements”).
(k) This
Agreement creates in favor of the Collateral Agent a legal, valid and enforceable Lien on and security interest in the Collateral, as
security for the Obligations. The performance of the Perfection Requirements results in (or shall result in) the perfection of such Lien
on and security interest in the Collateral. Such Lien and security interest is (or in the case of Collateral in which any Grantor obtains
any right, title or interest after the date hereof, will be), subject only to Permitted Liens and the Perfection Requirements, a first
priority, valid, enforceable and perfected Lien on and security interest in all personal property of each Grantor (other than Excluded
Collateral). Such recordings and filings and all other action necessary to perfect and protect such Lien and security interest have been
duly taken (and, in the case of Collateral in which any Grantor obtains right, title or interest after the date hereof, will be duly
taken), except for the Collateral Agent’s having possession of all Documents, Chattel Paper, Instruments and cash constituting
Collateral after the date hereof and the other actions, filings and recordations described above, including the Perfection Requirements.
(l) As
of the date hereof, no Grantor holds any Commercial Tort Claims or has knowledge of any pending Commercial Tort Claims, except for the
Commercial Tort Claims described in Schedule VI.
(m) All
of the Pledged Equity is presently owned by the applicable Grantor as set forth in Schedule IV free and clear of all Liens other
than Permitted Liens, and is presently represented by the certificates listed on Schedule IV hereto (if applicable). As of the
date hereof, there are no existing options, warrants, calls or commitments of any character whatsoever relating to the Pledged Equity
other than as contemplated and permitted by the Transaction Documents. Each Grantor is the sole holder of record and the sole beneficial
owner of the Pledged Equity, as applicable. None of the Pledged Equity has been issued or transferred in violation of the securities
registration, securities disclosure or similar laws of any jurisdiction to which such issuance or transfer may be subject. The Pledged
Equity constitutes 100% or such other percentage as set forth on Schedule IV of the issued and outstanding shares of Capital
Stock of the applicable Pledged Entity. All of the Pledged Equity has been duly and validly authorized and issued by the issuer thereof
and (i) in the case of Pledged Equity (other than Pledged Equity consisting of limited liability company interests or partnership
interests which, pursuant to the relevant organizational or formation documents, cannot be fully paid and non-assessable), is fully paid
and non-assessable.
(n) Such
Grantor (i) is a company, corporation, limited liability company or limited partnership, as applicable, duly organized or incorporated,
validly existing and in good standing under the laws of the jurisdiction of its incorporation, organization or formation, (ii) has
all requisite corporate, limited liability company or limited partnership power and authority to conduct its business as now conducted
and as presently contemplated and to execute and deliver this Agreement and each other Transaction Document to which such Grantor is
a party, and to consummate the transactions contemplated hereby and thereby and (iii) is duly qualified to do business and is in
good standing in each jurisdiction in which the character of the properties owned or leased by it or in which the transaction of its
business makes such qualification necessary, except where the failure to be so qualified would not result in a Material Adverse Effect.
(o) The
execution, delivery and performance by each Grantor of this Agreement and each other Transaction Document to which such Grantor is a
party (i) have been duly authorized by all necessary corporate, limited liability company or limited partnership action, (ii) do
not and will not contravene its memorandum of association or articles of association, charter or by-laws, limited liability company or
operating agreement, certificate of partnership or partnership agreement, as applicable, or any applicable law or any contractual restriction
binding on such Grantor or its properties, (iii) do not and will not result in or require the creation of any Lien (other than pursuant
to any Transaction Document) upon or with respect to any of its assets or properties, and (iv) do not and will not result in any
default, noncompliance, suspension, revocation, impairment, forfeiture or nonrenewal of any material permit, license, authorization or
approval applicable to it or its operations or any of its assets or properties.
(p) This
Agreement has been duly executed and delivered by each Grantor and is the legal, valid and binding obligation of such Grantor, enforceable
against such Grantor in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance, suretyship or other similar laws and equitable principles (regardless of whether enforcement is sought in equity
or at law). Each of the other Transaction Documents to which any Grantor is or will be a party, when delivered, duly executed and delivered
by such Grantor and the legal, valid and binding obligation of such Grantor, enforceable against such Grantor in accordance with its
terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, suretyship or
other similar laws and equitable principles (regardless of whether enforcement is sought in equity or at law).
(q) There
are no conditions precedent to the effectiveness of this Agreement that have not been satisfied or waived.
Section 6. Covenants
as to the Collateral. Until all of the Obligations shall have been fully performed and Paid in Full, unless the Collateral Agent
shall otherwise consent in writing (in its sole and absolute discretion):
(a) Further
Assurances. Each Grantor will, at its expense, at any time and from time to time, promptly execute and deliver all further instruments
and documents and take all further action that the Collateral Agent may reasonably request in order to: (i) perfect and protect
the Lien and security interest of the Collateral Agent created hereby; (ii) enable the Collateral Agent to exercise and enforce
its rights and remedies hereunder in respect of the Collateral, including, without limitation, the Controlled Accounts; or (iii) otherwise
effect the purposes of this Agreement, including, without limitation: (A) marking conspicuously all Chattel Paper and each License
and, at the request of the Collateral Agent, each of its Records pertaining to the Collateral with a legend, in form and substance satisfactory
to the Collateral Agent, indicating that such Chattel Paper, License or Collateral is subject to the Lien and security interest created
hereby, (B) delivering and pledging to the Collateral Agent each Promissory Note, Security (subject to the limitations set forth
in Section 3), Chattel Paper or other Instrument, now or hereafter owned by any Grantor, duly endorsed and accompanied by
executed instruments of transfer or assignment, all in form and substance satisfactory to the Collateral Agent, (C) executing and
filing (to the extent, if any, that any Grantor’s signature is required thereon) or authenticating the filing of, such financing
or continuation statements, or amendments thereto, as may be necessary or that the Collateral Agent may reasonably request in order to
perfect and preserve the security interest created hereby, (D) furnishing to the Collateral Agent from time to time statements and
schedules further identifying and describing the Collateral and such other reports in connection with the Collateral in each case as
the Collateral Agent may reasonably request, all in reasonable detail, (E) if any Collateral shall be in the possession of a third
party, notifying such Person of the Collateral Agent’s security interest created hereby and obtaining a written acknowledgment
from such Person, in form and substance satisfactory to the Collateral Agent, that such Person holds possession of the Collateral for
the benefit of the Collateral Agent (for the ratable benefit of the Collateral Agent and the Noteholders), (F) if at any time after
the date hereof, any Grantor acquires or holds any Commercial Tort Claim, promptly notifying the Collateral Agent in a writing signed
by such Grantor setting forth a brief description of such Commercial Tort Claim and granting to the Collateral Agent a Lien and security
interest therein and in the Proceeds thereof, which writing shall incorporate the provisions hereof and shall be in form and substance
satisfactory to the Collateral Agent, (G) upon the acquisition after the date hereof by any Grantor of any Titled Equipment (as
defined below) subject to a certificate of title or ownership, causing the Collateral Agent to be listed as the lienholder on such certificate
of title or ownership and delivering evidence of the same to the Collateral Agent in accordance with Section 6(j) hereof;
and (H) taking all actions required by the Code or by other applicable law, as applicable, in any relevant Code jurisdiction, or
by other applicable law as applicable in any foreign jurisdiction.
(b) Location
of Collateral. Each Grantor will keep the Collateral (i) at the locations specified therefor on Schedule III hereto,
or (ii) at such other locations set forth on Schedule III and with respect to which the Collateral Agent has filed financing
statements and otherwise fully perfected its Liens thereon, or (iii) at such other locations in the United States, provided that
30 days prior to any change in the location of any Collateral to such other location, or upon the acquisition of any Collateral to be
kept at such other locations, the Grantors shall give the Collateral Agent written notice thereof and deliver to the Collateral Agent
a new Schedule III indicating such new locations and such other written statements and schedules as the Collateral Agent may require.
(c) Condition
of Equipment. Each Grantor will maintain or cause to be maintained and preserved in good condition, repair and working order, ordinary
wear and tear excepted, the Equipment (necessary or useful to its business) and will forthwith, or in the case of any loss or damage
to any Equipment of any Grantor within a commercially reasonable time after the occurrence thereof, make or cause to be made all repairs,
replacements and other improvements in connection therewith which are necessary or desirable, consistent with past practice, or which
the Collateral Agent may request to such end. Any Grantor will promptly furnish to the Collateral Agent a statement describing in reasonable
detail any such loss or damage in excess of $25,000 per occurrence to any Equipment.
(d) Taxes,
Etc. Each Grantor agrees to pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed
upon, and all claims (including claims for labor, materials and supplies) against, the Equipment and Inventory, except to the extent
the validity thereof is being contested in good faith by proper proceedings which stay the imposition of any penalty, fine or Lien resulting
from the non-payment thereof and with respect to which adequate reserves in accordance with GAAP have been set aside for the payment
thereof.
(e) Insurance.
(i) Each
Grantor will, at its own expense, maintain insurance (including, without limitation, comprehensive general liability, hazard, rent and
business interruption insurance) with respect to its properties (including all real properties leased or owned by it) and business, in
such amounts and covering such risks, in such form and with responsible and reputable insurance companies or associations as is required
by any Governmental Authority having jurisdiction with respect thereto or as is carried generally in accordance with sound business practice
by companies in similar businesses similarly situated and in any event, in amount, adequacy and scope reasonably satisfactory to the
Collateral Agent.
(ii) To
the extent requested by the Collateral Agent at any time and from time to time, each such policy for liability insurance shall provide
for all losses to be paid on behalf of the Collateral Agent and any Grantor as their respective interests may appear, and each policy
for property damage insurance shall provide for all losses to be adjusted with, and paid directly to, the Collateral Agent. In addition
to and without limiting the foregoing, to the extent requested by the Collateral Agent at any time and from time to time, each such policy
shall in addition (A) name the Collateral Agent as an additional insured party and/or loss payee, as applicable, thereunder (without
any representation or warranty by or obligation upon the Collateral Agent) as its interests may appear, (B) contain an agreement
by the insurer that any loss thereunder shall be payable to the Collateral Agent on its own account notwithstanding any action, inaction
or breach of representation or warranty by any Grantor, (C) provide that there shall be no recourse against the Collateral Agent
for payment of premiums or other amounts with respect thereto, and (D) provide that at least 30 days’ prior written notice
of cancellation, lapse, expiration or other adverse change shall be given to the Collateral Agent by the insurer. Any Grantor will, if
so requested by the Collateral Agent, deliver to the Collateral Agent original or duplicate policies of such insurance (including certificates
demonstrating compliance with this Section 6(e)) and, as often as the Collateral Agent may reasonably request, a report of
a reputable insurance broker with respect to such insurance. Any Grantor will also, at the request of the Collateral Agent, execute and
deliver instruments of assignment of such insurance policies and cause the respective insurers to acknowledge notice of such assignment.
(iii) Reimbursement
under any liability insurance maintained by any Grantor pursuant to this Section 6(e) may be paid directly to the Person
who shall have incurred liability covered by such insurance. In the case of any loss involving damage to Equipment or Inventory, to the
extent paragraph (iv) of this Section 6(e) is not applicable, any proceeds of insurance involving such damage shall
be paid to the Collateral Agent, and any Grantor will make or cause to be made the necessary repairs to or replacements of such Equipment
or Inventory, and any proceeds of insurance maintained by any Grantor pursuant to this Section 6(e) (except as otherwise
provided in paragraph (iv) in this Section 6(e)) shall be paid by the Collateral Agent to any Grantor as reimbursement
for the reasonable costs of such repairs or replacements.
(iv) Notwithstanding
anything to the contrary in subsection 6(e)(iii) above, following and during the continuance of an Event of Default, all insurance
payments in respect of each Grantor’s properties and business shall be paid to the Collateral Agent and applied as specified in
Section 8(b) hereof.
(f) Provisions
Concerning Name, Organization, Location, Accounts and Licenses.
(i) Each
Grantor will (A) give the Collateral Agent at least 30 days’ prior written notice of any change in such Grantor’s name,
identity or organizational structure, (B) maintain its jurisdiction of incorporation, organization or formation as set forth in
Schedule I hereto, (C) immediately notify the Collateral Agent upon obtaining an organizational identification number, if
on the date hereof such Grantor did not have such identification number, and (D) keep adequate records concerning the Collateral
and permit representatives of the Collateral Agent during normal business hours on reasonable notice to such Grantor, to inspect and
make abstracts from such records.
(ii) Each
Grantor will (except as otherwise provided in this subsection (f)), continue to collect, at its own expense, all amounts due or
to become due under the Accounts. In connection with such collections, any Grantor may (and, at the Collateral Agent’s direction,
will) take such action as any Grantor or the Collateral Agent may deem necessary or advisable to enforce collection or performance of
the Accounts; provided, however, that the Collateral Agent shall have the right at any time following the occurrence and
during the continuance of an Event of Default to notify the Account Debtors or obligors under any Accounts of the assignment of such
Accounts to the Collateral Agent and to direct such Account Debtors or obligors to make payment of all amounts due or to become due to
any Grantor thereunder directly to the Collateral Agent or its designated agent and, upon such notification and at the expense of any
Grantor and to the extent permitted by applicable law, to enforce collection of any such Accounts and to adjust, settle or compromise
the amount or payment thereof, in the same manner and to the same extent as any Grantor might have done. After receipt by any Grantor
of a notice from the Collateral Agent that the Collateral Agent has notified, intends to notify, or has enforced or intends to enforce
any Grantor’s rights against the Account Debtors or obligors under any Accounts as referred to in the proviso to the immediately
preceding sentence, (A) all amounts and proceeds (including, without limitation, Instruments) received by any Grantor in respect
of the Accounts shall be received in trust for the benefit of the Collateral Agent hereunder (for the ratable benefit of the Collateral
Agent and the Noteholders), shall be segregated from other funds of any Grantor and shall be forthwith paid over to the Collateral Agent
in the same form as so received (with any necessary endorsement) to be applied as specified in Section 8(b) hereof,
and (B) no Grantor will adjust, settle or compromise the amount or payment of any Account or release wholly or partly any Account
Debtor or obligor thereof or allow any credit or discount thereon. In addition, upon the occurrence and during the continuance of an
Event of Default, the Collateral Agent may (in its sole and absolute discretion) direct any or all of the banks and financial institutions
with which any Grantor either maintains a Deposit Account or a lockbox (including, without limitation, any Controlled Account) or deposits
the proceeds of any Accounts to send immediately to the Collateral Agent by wire transfer (to such deposit account as the Collateral
Agent shall specify, or in such other manner as the Collateral Agent shall direct) all or a portion of such Securities, cash, investments
and other items held by such institution. Any such Securities, cash, investments and other items so received by the Collateral Agent
shall be applied as specified in accordance with Section 8(b) hereof.
(iii) Upon
the occurrence and during the continuance of any breach or default under any material License referred to in Schedule II hereto
by any party thereto other than any Grantor, each Grantor party thereto will, promptly after obtaining knowledge thereof, give the Collateral
Agent written notice of the nature and duration thereof, specifying what action, if any, it has taken and proposes to take with respect
thereto and thereafter will take reasonable steps to protect and preserve its rights and remedies in respect of such breach or default,
or will obtain or acquire an appropriate substitute License.
(iv) Each
Grantor will, at its expense, promptly deliver to the Collateral Agent a copy of each notice or other communication received by it by
which any other party to any material License referred to in Schedule II hereto purports to exercise any of its rights or affect
any of its obligations thereunder, together with a copy of any reply by such Grantor thereto.
(v) Each
Grantor will exercise promptly and diligently each and every right which it may have under each material License (other than any right
of termination) and will duly perform and observe in all respects all of its obligations under each material License and will take all
action necessary or reasonable to maintain such Licenses in full force and effect. No Grantor will, without the prior written consent
of the Collateral Agent (in its sole and absolute discretion), cancel, terminate, amend or otherwise modify in any respect, or waive
any provision of, any material License referred to in Schedule II hereto.
(g) Transfers
and Other Liens.
(i) Except
as otherwise expressly permitted in the other Transaction Documents, no Grantor shall, directly or indirectly, sell, lease, license,
assign, transfer, spin-off, split-off, close, convey or otherwise dispose of any Collateral whether in a single transaction or a series
of related transactions, other than (A) sales, leases, licenses, assignments, transfers, conveyances and other dispositions of such
assets or rights by such Grantor for fair value in the ordinary course of business consistent with past practices and (B) sales
of Inventory and product in the ordinary course of business.
(ii) Except
as permitted under Section 14(e) of the Notes, no Grantor shall, directly or indirectly, redeem, repurchase or declare or pay
any cash dividend or distribution on any of its Capital Stock.
(iii) No
Grantor shall, directly or indirectly, without the prior written consent of the Required Holders, (A) issue any Notes (other than
as contemplated by the Securities Purchase Agreement and the Notes) or (B) issue any other Securities that would cause a breach
or default under the Notes.
(iv) No
Grantor shall enter into, renew, extend or be a party to, any transaction or series of related transactions (including, without limitation,
the purchase, sale, lease, transfer or exchange of property or assets of any kind or the rendering of services of any kind) with any
Affiliate, except in the ordinary course of business in a manner and to an extent consistent with past practice and necessary or desirable
for the prudent operation of its business, for fair consideration and on terms no less favorable to it than would be obtainable in a
comparable arm’s length transaction with a Person that is not an Affiliate thereof.
(v) No
Grantor will create, suffer to exist or grant any Lien upon or with respect to any Collateral other than a Permitted Lien.
(h) Intellectual
Property.
(i) If
applicable, each Grantor shall duly execute and deliver the applicable Intellectual Property Security Agreement. Each Grantor (either
itself or through licensees) will, and will cause each licensee thereof to, take all action necessary to maintain all of the Intellectual
Property in full force and effect, including, without limitation, using the proper statutory notices, numbers and markings (relating
to patent, trademark and copyright rights) and using the Trademarks on each applicable trademark class of goods in order to so maintain
the Trademarks in full force and free from any claim of abandonment for non-use, and each Grantor will not (nor permit any licensee thereof
to) do any act or knowingly omit to do any act whereby any Intellectual Property may become abandoned, cancelled or invalidated; provided,
however, that so long as no Event of Default has occurred and is continuing, no Grantor shall have an obligation to use or to
maintain any Intellectual Property (A) that relates solely to any product or work, that is no longer necessary or material and has
been, or is in the process of being, discontinued, abandoned or terminated in the ordinary course of business and consistent with the
exercise of reasonable business judgment, (B) that is being replaced with Intellectual Property substantially similar to the Intellectual
Property that may be abandoned or otherwise become invalid, so long as the failure to use or maintain such Intellectual Property does
not materially adversely affect the validity of such replacement Intellectual Property and so long as such replacement Intellectual Property
is subject to the Lien created by this Agreement and does not have a material adverse effect on the business of any Grantor or (C) that
is substantially the same as other Intellectual Property that is in full force, so long the failure to use or maintain such Intellectual
Property does not materially adversely affect the validity of such replacement Intellectual Property and so long as such other Intellectual
Property is subject to the Lien and security interest created by this Agreement and does not have a material adverse effect on the business
of any Grantor. Each Grantor will cause to be taken all necessary steps in any proceeding before the United States Patent and Trademark
Office and the United States Copyright Office or any similar office or agency in any other country or political subdivision thereof to
maintain each registration of the Intellectual Property and application for registration of Intellectual Property (other than the Intellectual
Property described in the proviso to the immediately preceding sentence), including, without limitation, filing of renewals, affidavits
of use, affidavits of incontestability and opposition, interference and cancellation proceedings and payment of maintenance fees, filing
fees, taxes or other governmental charges or fees. If any Intellectual Property (other than Intellectual Property described in the proviso
to the second sentence of subsection (i) of this clause (h)) is infringed, misappropriated, diluted or otherwise violated in any
material respect by a third party, each Grantor shall (x) upon learning of such infringement, misappropriation, dilution or other
violation, promptly notify the Collateral Agent and (y) promptly sue for infringement, misappropriation, dilution or other violation,
seek injunctive relief where appropriate and recover any and all damages for such infringement, misappropriation, dilution or other violation,
or take such other actions as such Grantor shall deem appropriate under the circumstances to protect such Intellectual Property. Each
Grantor shall furnish to the Collateral Agent from time to time upon its request statements and schedules further identifying and describing
the Intellectual Property and Licenses and such other reports in connection with the Intellectual Property and Licenses as the Collateral
Agent may reasonably request, all in reasonable detail and promptly upon request of the Collateral Agent, following receipt by the Collateral
Agent of any such statements, schedules or reports, each Grantor shall modify this Agreement by amending Schedule II hereto, as
the case may be, to include any Intellectual Property and License, as the case may be, which is or hereafter becomes part of the Collateral
under this Agreement and shall execute and authenticate such documents and do such acts as shall be necessary or, in the reasonable judgment
of the Collateral Agent, desirable to subject such Intellectual Property and Licenses to the Lien and security interest created by this
Agreement. Notwithstanding anything herein to the contrary, upon the occurrence and during the continuance of an Event of Default, no
Grantor may abandon, surrender or cancel or otherwise permit any Intellectual Property to become abandoned, surrendered, cancelled or
invalid without the prior written consent of the Collateral Agent (in its sole and absolute discretion), and if any Intellectual Property
is infringed, misappropriated, diluted or otherwise violated in any material respect by a third party, each Grantor will take such reasonable
action as the Collateral Agent shall deem appropriate under the circumstances to protect such Intellectual Property.
(ii) In
no event shall any Grantor, either itself or through any agent, employee, licensee or designee, file an application for the registration
of any Patent, Trademark or Copyright or the United States Copyright Office or the United States Patent and Trademark Office, as applicable,
or in any similar office or agency of the United States or any country or any political subdivision thereof unless it gives the Collateral
Agent prior written notice thereof. Upon request of the Collateral Agent, any Grantor shall execute, authenticate and deliver any and
all assignments, agreements, instruments, documents and papers as the Collateral Agent may reasonably request to evidence the Collateral
Agent’s security interest hereunder in such Intellectual Property and the General Intangibles of any Grantor relating thereto or
represented thereby, and each Grantor hereby appoints the Collateral Agent its attorney-in-fact to execute and/or authenticate and file
all such writings for the foregoing purposes, all acts of such attorney being hereby ratified and confirmed, and such power (being coupled
with an interest) shall be irrevocable until all Obligations are fully performed and Paid in Full.
(i) Pledged
Accounts.
(A) Each Grantor shall
cause each bank and other financial institution which maintains a Controlled Account (each a “Controlled Account Bank”)
to execute and deliver to the Collateral Agent, in form and substance satisfactory to the Collateral Agent, a Controlled Account Agreement
with respect to such Controlled Account, duly executed by each Grantor and such Controlled Account Bank, pursuant to which such Controlled
Account Bank among other things shall irrevocably agree, with respect to such Controlled Account, that (i) at any time after any
Grantor, the Collateral Agent or any Buyer shall have notified such Controlled Account Bank that an Event of Default has occurred or
is continuing, such Controlled Account Bank will comply with any and all instructions originated by the Collateral Agent directing the
disposition of the funds in such Controlled Account without further consent by such Grantor, (ii) such Controlled Account Bank shall
waive, subordinate or agree not to exercise any rights of setoff or recoupment or any other claim against the applicable Controlled Account
other than for payment of its service fees and other charges directly related to the administration of such Controlled Account and for
returned checks or other items of payment, (iii) at any time after any Grantor, the Collateral Agent or any Buyer shall have notified
such Controlled Account Bank that an Event of Default has occurred or is continuing, with respect to each such Controlled Account, such
Controlled Account Bank shall not comply with any instructions, directions or orders of any form with respect to such Controlled Accounts
other than instructions, directions or orders originated by the Collateral Agent, (iv) all funds deposited by any Grantor with such
Controlled Account Bank shall be subject to a perfected, first priority security interest in favor of the Collateral Agent, and (v) upon
receipt of written notice from the Collateral Agent during the continuance of an Event of Default, such Controlled Account Bank shall
immediately send to the Collateral Agent by wire transfer (to such account as the Collateral Agent shall specify, or in such other manner
as the Collateral Agent shall direct) all such funds and other items held by it. No Grantor shall create or maintain any Pledged Account
without the prior written consent of the Collateral Agent (in its sole and absolute discretion) and complying with the terms of this
Agreement.
(B) If at any time after
the date of this Agreement, the average daily balance of any Account that is not subject to a Controlled Account Agreement exceeds $10,000
during any calendar month (including the calendar month in which the date of this Agreement occurs), the Company shall, either (x) within
two (2) Business Days following such date, transfer to a Controlled Account an amount sufficient to reduce the total aggregate amount
of the cash in such Account to an amount not in excess of $10,000 or (y) within twenty-one (21) calendar days following the last
day of such calendar month, deliver to the Collateral Agent a Controlled Account Agreement with respect to such Account, duly executed
by such Grantor and the depositary bank in which such Account is maintained.
(C) Notwithstanding
anything to the contrary contained in Section 6(i)(B) above, and without limiting any of the foregoing, if at any time
on or after the date that is twenty-one (21) calendar days following the Closing Date, the total aggregate amount of the cash of the
Company and any of its Subsidiaries, in the aggregate, that is not held in a Controlled Account exceeds $100,000 (the “Maximum
Free Cash Amount”), the Company shall within two (2) Business Days following such date, either (x) transfer to a
Controlled Account an amount sufficient to reduce the total aggregate amount of the cash that is not held in a Controlled Account to
an amount not in excess of the Maximum Free Cash Amount or (y) deliver to the Collateral Agent a Controlled Account Agreement with
respect to such Account (or Accounts), duly executed by such Grantor and the depositary bank in which such Account (or Accounts) is maintained,
as necessary to reduce the total aggregate amount of the cash that is not held in a Controlled Account to an amount not in excess of
the Maximum Free Cash Amount.
(i) With
the exception of the Controlled Account Agreement with respect to Sonic Auspice DC LLC, the Grantors shall have twenty-one (21) calendar
days following the receipt of a written notice from the Collateral Agent to execute and deliver to the Collateral Agent Controlled Account
Agreements(s) with respct to the Pledged Accounts set forth on Schedule IV as the date hereof.
(j) Titled
Equipment.
(i) Upon
the Collateral Agent’s written request, each Grantor shall deliver to the Collateral Agent originals of the certificates of title
or ownership for each equipment with a value in excess of $10,000 owned by it (“Titled Equipment”), with the
Collateral Agent listed as lienholder, for the ratable benefit of the Collateral Agent and the Noteholders.
(ii) Each
Grantor hereby appoints the Collateral Agent as its attorney-in-fact for the purpose of (A) executing on behalf of such Grantor
title or ownership applications for filing with appropriate Governmental Authorities to enable Titled Equipment now owned or hereafter
acquired by such Grantor to be retitled and the Collateral Agent listed as lienholder thereof, (B) filing such applications with
such Governmental Authorities, and (C) executing such other agreements, documents and instruments on behalf of, and taking such
other action in the name of, such Grantor as the Collateral Agent may deem necessary or advisable to accomplish the purposes hereof (including,
without limitation, for the purpose of creating in favor of the Collateral Agent a perfected Lien on the Titled Equipment and
exercising the rights and remedies of the Collateral Agent hereunder). This appointment as attorney-in-fact is coupled with an interest
and is irrevocable until all of the Obligations are fully performed and Paid in Full.
(iii) Any
certificates of title or ownership delivered pursuant to the terms hereof shall be accompanied by accurate odometer statements for each
Titled Equipment covered thereby.
(iv) So
long as no Event of Default shall have occurred and be continuing, upon the request of any Grantor, the Collateral Agent shall execute
and deliver to any Grantor such instruments as such Grantor shall reasonably request to remove the notation of the Collateral Agent as
lienholder on any certificate of title for any Titled Equipment; provided, however, that any such instruments shall
be delivered, and the release effective, only upon receipt by the Collateral Agent of a certificate from any Grantor stating that such
Titled Equipment is to be sold or has suffered a casualty loss (with title thereto in such case passing to the casualty insurance
company therefor in settlement of the claim for such loss) and the amount that any Grantor will receive as sale proceeds or insurance
proceeds. Any proceeds of such sale or casualty loss shall be paid to the Collateral Agent hereunder immediately upon receipt, to be
applied to the Obligations then outstanding.
(k) Control.
Each Grantor hereby agrees to take any or all action that may be necessary or that the Collateral Agent may reasonably request in order
for the Collateral Agent to obtain “control” in accordance with Sections 9-105 through 9-107 of the Code with respect to
the following Collateral: (i) Electronic Chattel Paper, (ii) Investment Property, and (iii) Letter-of-Credit Rights.
(l) Inspection
and Reporting. Each Grantor shall permit the Collateral Agent, or any agent or representatives thereof or such attorneys, accountant
or other professionals or other Persons as the Collateral Agent may designate (at Grantors’ sole cost and expense) (i) to
examine and make copies of and abstracts from any Grantor’s Records and books of account, (ii) to visit and inspect its properties,
(iii) to verify materials, leases, Instruments, Accounts, Inventory and other assets of any Grantor from time to time,
and (iv) to conduct audits, physical counts, appraisals, valuations and/or examinations at the locations of any Grantor. Each Grantor
shall also permit the Collateral Agent, or any agent or representatives thereof or such attorneys, accountants or other professionals
or other Persons as the Collateral Agent may designate to discuss such Grantor’s affairs, finances and accounts with any of its
directors, officers, managerial employees, attorneys, independent accountants or any of its other representatives. Without limiting the
foregoing, the Collateral Agent may, at any time, in the Collateral Agent’s own name, in the name of a nominee of the Collateral
Agent, or in the name of any Grantor communicate (by mail, telephone, facsimile or otherwise) with the Account Debtors of such Grantor,
parties to contracts with such Grantor and/or obligors in respect of Instruments or Pledged Debt of such Grantor to verify with such
Persons, to the Collateral Agent’s satisfaction, the existence, amount, terms of, and any other matter relating to, Accounts, Instruments,
Pledged Debt, Chattel Paper, payment intangibles and/or other receivables.
(m) Future
Subsidiaries. If any Grantor hereafter creates or acquires any Subsidiary, simultaneously with the creation or acquisition of such
Subsidiary, such Grantor shall (i) if such Subsidiary is a Domestic Subsidiary, cause such Subsidiary to become a party to this
Agreement as an additional “Grantor” hereunder, (ii) deliver to the Collateral Agent updated Schedules to this Agreement,
as appropriate (including, without limitation, an updated Schedule IV to reflect the grant by such Grantor of a Lien on and security
interest in all Pledged Debt and Pledged Equity now or hereafter owned by such Grantor), (iii) if such Subsidiary is a Domestic
Subsidiary, cause such Subsidiary to duly execute and deliver a guaranty of the Obligations in favor of the Collateral Agent in form
and substance acceptable to the Collateral Agent, (iv) deliver to the Collateral Agent the stock certificates representing all of
the Capital Stock of such Subsidiary, along with undated stock powers for each such certificates, executed in blank (or, if any such
shares of Capital Stock are uncertificated, confirmation and evidence reasonably satisfactory to the Collateral Agent that the security
interest in such uncertificated securities has been transferred to and perfected by the Collateral Agent, in accordance with Sections
8-313, 8-321 and 9-115 of the Code or any other similar or local or foreign law that may be applicable), and (v) duly execute and/or
cause to be delivered to the Collateral Agent, in form and substance acceptable to the Collateral Agent, such opinions of counsel and
other documents as the Collateral Agent shall request with respect thereto; provided, however, that no Grantor shall be required to pledge
any Excluded Collateral. Each Grantor hereby authorizes the Collateral Agent to attach such updated Schedules to this Agreement and agrees
that all Pledged Equity and Pledged Debt listed on any updated Schedule delivered to the Collateral Agent shall for all purposes hereunder
be considered Collateral. The Grantors agree that the pledge of the shares of Capital Stock acquired by a Grantor of Foreign Subsidiary
may be supplemented by one or more separate pledge agreements, deeds of pledge, share charges, or other similar agreements or instruments,
executed and delivered by the relevant Grantor in favor of the Collateral Agent, which pledge agreements will provide for the pledge
of such shares of Capital Stock in accordance with the laws of the applicable foreign jurisdiction. With respect to such shares of Capital
Stock, the Collateral Agent may, at any time and from time to time, in its sole discretion, take actions in such foreign jurisdictions
that will result in the perfection of the Lien created in such shares of Capital Stock.
Section 7. Additional
Provisions Concerning the Collateral.
(a) To
the maximum extent permitted by applicable law, and for the purpose of taking any action that the Collateral Agent may deem necessary
or advisable to accomplish the purposes of this Agreement, each Grantor hereby (i) authorizes the Collateral Agent to execute any
such agreements, instruments or other documents in such Grantor’s name and to file such agreements, instruments or other documents
in such Grantor’s name and in any appropriate filing office, (ii) authorizes the Collateral Agent at any time and from time
to time to file, one or more financing or continuation statements, and amendments thereto, relating to the Collateral (including, without
limitation, any such financing statements that (A) describe the Collateral as “all assets” or “all personal property”
(or words of similar effect) or that describe or identify the Collateral by type or in any other manner as the Collateral Agent may determine
regardless of whether any particular asset of such Grantor falls within the scope of Article 9 of the Code or whether any particular
asset of such Grantor constitutes part of the Collateral, and (B) contain any other information required by Part 5 of Article 9
of the Code for the sufficiency or filing office acceptance of any financing statement, continuation statement or amendment, including,
without limitation, whether such Grantor is an organization, the type of organization and any organizational identification number issued
to such Grantor) and (iii) ratifies such authorization to the extent that the Collateral Agent has filed any such financing or continuation
statements, or amendments thereto, prior to the date hereof. A photocopy or other reproduction of this Agreement or any financing statement
covering the Collateral or any part thereof shall be sufficient as a financing statement where permitted by law.
(b) Each
Grantor hereby irrevocably appoints the Collateral Agent as its attorney-in-fact and proxy, with full authority in the place and stead
of such Grantor and in the name of such Grantor or otherwise, from time to time in the Collateral Agent’s discretion, to take any
action and to execute any instrument which the Collateral Agent may deem necessary or advisable to accomplish the purposes of this Agreement,
including, without limitation, (i) to obtain and adjust insurance required to be paid to the Collateral Agent pursuant to Section 6(e) hereof,
(ii) to ask, demand, collect, sue for, recover, compound, receive and give acquittance and receipts for moneys due and to become
due under or in respect of any Collateral, (iii) to receive, endorse, and collect any drafts or other Instruments, Documents and
Chattel Paper in connection with clause (i) or (ii) above, (iv) to file any claims or take any action or institute any
action, suit or proceedings which the Collateral Agent may deem necessary or desirable for the collection of any Collateral or otherwise
to enforce the rights of the Collateral Agent and the Noteholders with respect to any Collateral, (v) to execute assignments, licenses
and other documents to enforce the rights of the Collateral Agent and the Noteholders with respect to any Collateral, and (vi) to
verify any and all information with respect to any and all Accounts. This power is coupled with an interest and is irrevocable until
all of the Obligations are fully performed and Paid in Full.
(c) For
the purpose of enabling the Collateral Agent to exercise rights and remedies hereunder, at such time as the Collateral Agent shall be
lawfully entitled to exercise such rights and remedies, and for no other purpose, each Grantor hereby grants to the Collateral Agent,
to the extent assignable, an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any
Grantor) to use, assign, license or sublicense any Intellectual Property in which such Grantor now or hereafter has any right, title
or interest, wherever the same may be located, including, without limitation, in such license reasonable access to all media in which
any of the licensed items may be recorded or stored and to all computer programs used for the compilation or printout thereof. Notwithstanding
anything contained herein to the contrary, but subject to the provisions of the Securities Purchase Agreement that limit the right of
any Grantor to dispose of its property, and Section 6(g) and Section 6(h) hereof, so long as no Event
of Default shall have occurred and be continuing, any Grantor may exploit, use, enjoy, protect, license, sublicense, assign, sell, dispose
of or take other actions with respect to the Intellectual Property in the ordinary course of its business and as otherwise expressly
permitted by any of the other Transaction Documents. In furtherance of the foregoing, unless an Event of Default shall have occurred
and be continuing, the Collateral Agent shall from time to time, upon the request of any Grantor, execute and deliver any instruments,
certificates or other documents, in the form so requested, which such Grantor shall have certified are appropriate (in such Grantor’s
judgment) to allow it to take any action permitted above (including relinquishment of the license provided pursuant to this clause (c) as
to any Intellectual Property). Further, upon the full performance and Payment in Full of all of the Obligations, the Collateral Agent
(subject to Section 11(e) hereof) shall release and reassign to any Grantor all of the Collateral Agent’s right,
title and interest in and to the Intellectual Property, and the Licenses, all without recourse, representation or warranty whatsoever.
The exercise of rights and remedies hereunder by the Collateral Agent shall not terminate the rights of the holders of any licenses or
sublicenses theretofore granted by each Grantor in accordance with the second sentence of this clause (c). Each Grantor hereby releases
the Collateral Agent from any claims, causes of action and demands at any time arising out of or with respect to any actions taken or
omitted to be taken by the Collateral Agent under the powers of attorney granted herein other than actions taken or omitted to be taken
through the Collateral Agent’s gross negligence or willful misconduct, as determined by a final judgment of a court of competent
jurisdiction no longer subject to appeal.
(d) If
any Grantor fails to perform any agreement or obligation contained herein, the Collateral Agent may itself perform, or cause performance
of, such agreement or obligation, in the name of such Grantor or the Collateral Agent, and the expenses of the Collateral Agent incurred
in connection therewith shall be payable by such Grantor pursuant to Section 9 hereof and such obligation shall be secured
by the Collateral.
(e) The
powers conferred on the Collateral Agent hereunder are solely to protect its interest in the Collateral and shall not impose any duty
upon it to exercise any such powers. Except for the safe custody of any Collateral in its possession and the accounting for moneys actually
received by it hereunder, the Collateral Agent shall have no duty as to any Collateral or as to the taking of any necessary steps to
preserve rights against prior parties or any other rights pertaining to any Collateral.
(f) Anything
herein to the contrary notwithstanding (i) each Grantor shall remain liable under the Licenses and otherwise with respect to any
of the Collateral to the extent set forth therein to perform all of its obligations thereunder to the same extent as if this Agreement
had not been executed, (ii) the exercise by the Collateral Agent of any of its rights or remedies hereunder shall not release any
Grantor from any of its obligations under the Licenses or otherwise in respect of the Collateral, and (iii) the Collateral Agent
shall not have any obligation or liability by reason of this Agreement under the Licenses or with respect to any of the other Collateral,
nor shall the Collateral Agent be obligated to perform any of the obligations or duties of any Grantor thereunder or to take any action
to collect or enforce any claim for payment assigned hereunder.
(g) As
long as no Event of Default shall have occurred and be continuing and, other than in the case of a Bankruptcy Event of Default, until
written notice shall be given to the applicable Grantor:
(i) Each
Grantor shall have the right, from time to time, to vote and give consents with respect to the Pledged Equity, or any part thereof for
all purposes not inconsistent with the provisions of this Agreement, the Securities Purchase Agreement or any other Transaction Document;
provided, however, that no vote shall be cast, and no consent shall be given or action taken, which would have the effect of impairing
the position or interest of the Collateral Agent in respect of the Pledged Equity or which would authorize, effect or consent to (unless
and to the extent expressly permitted by the Securities Purchase Agreement):
(A) the
dissolution or liquidation, in whole or in part, of a Pledged Entity;
(B) the
consolidation or merger of a Pledged Entity with any other Person;
(C) the
sale, disposition or encumbrance of all or substantially all of the assets of a Pledged Entity, except for Liens in favor of the Collateral
Agent;
(D) any
change in the authorized number of shares, the stated capital or the authorized share capital of a Pledged Entity or the issuance of
any additional shares of its Capital Stock; or
(E) the
alteration of the voting rights with respect to the Capital Stock of a Pledged Entity.
(h) (i) Each
Grantor shall be entitled, from time to time, to collect and receive for its own use all cash dividends and interest paid in respect
of the Pledged Equity to the extent not in violation of the Securities Purchase Agreement other than any and all: (A) dividends
and interest paid or payable other than in cash in respect of any Pledged Equity, and instruments and other property received, receivable
or otherwise distributed in respect of, or in exchange for, any Pledged Equity; (B) dividends and other distributions paid or payable
in cash in respect of any Pledged Equity in connection with a partial or total liquidation or dissolution or in connection with a reduction
of capital, capital surplus or paid-in capital of a Pledged Entity; and (C) cash paid, payable or otherwise distributed, in respect
of principal of, or in redemption of, or in exchange for, any Pledged Equity; provided, however, that until actually paid all rights
to such distributions shall remain subject to the Lien created by this Agreement; and
(ii) all
dividends and interest (other than such cash dividends and interest as are permitted to be paid to any Grantor in accordance with clause
(i) above) and all other distributions in respect of any of the Pledged Equity, whenever paid or made, shall be delivered to the
Collateral Agent to hold as Pledged Equity and shall, if received by any Grantor, be received in trust for the benefit of the Collateral
Agent (for the ratable benefit of the Collateral Agent and the Noteholders), be segregated from the other property or funds of such Grantor,
and be forthwith delivered to the Collateral Agent as Pledged Equity in the same form as so received (with any necessary endorsement).
Section 8. Remedies
Upon Event of Default; Application of Proceeds. If any Event of Default shall have occurred and be continuing:
(a) The
Collateral Agent may exercise in respect of the Collateral, in addition to any other rights and remedies provided for herein, in any
other Transaction Document or otherwise available to it, all of the rights and remedies of a secured party upon default under the Code
(whether or not the Code applies to the affected Collateral), and also may (i) take absolute control of the Collateral, including,
without limitation, transfer into the Collateral Agent’s name or into the name of its nominee or nominees (to the extent the Collateral
Agent has not theretofore done so) and thereafter receive, for the ratable benefit of itself and the Noteholders, all payments made thereon,
give all consents, waivers and ratifications in respect thereof and otherwise act with respect thereto as though it were the outright
owner thereof, (ii) require each Grantor to, and each Grantor hereby agrees that it will at its expense and upon request of the
Collateral Agent forthwith, assemble all or part of its respective Collateral as directed by the Collateral Agent and make it available
to the Collateral Agent at a place or places to be designated by the Collateral Agent that is reasonably convenient to both parties,
and the Collateral Agent may enter into and occupy any premises owned or leased by any Grantor where the Collateral or any part thereof
is located or assembled for a reasonable period in order to effectuate the Collateral Agent’s rights and remedies hereunder or
under law, without obligation to any Grantor in respect of such occupation, and (iii) without notice except as specified below and
without any obligation to prepare or process the Collateral for sale, (A) sell the Collateral or any part thereof in one or more
parcels at public or private sale (including, without limitation, by credit bid), at any of the Collateral Agent’s offices or elsewhere,
for cash, on credit or for future delivery, and at such price or prices and upon such other terms as the Collateral Agent may deem commercially
reasonable and/or (B) lease, license or dispose of the Collateral or any part thereof upon such terms as the Collateral Agent may
deem commercially reasonable. Each Grantor agrees that, to the extent notice of sale or any other disposition of its respective Collateral
shall be required by law, at least ten (10) days’ notice to any Grantor of the time and place of any public sale or the time
after which any private sale or other disposition of its respective Collateral is to be made shall constitute reasonable notification.
The Collateral Agent shall not be obligated to make any sale or other disposition of any Collateral regardless of notice of sale having
been given. The Collateral Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. Each Grantor hereby
waives any claims against the Collateral Agent and the Noteholders arising by reason of the fact that the price at which its respective
Collateral may have been sold at a private sale was less than the price which might have been obtained at a public sale or was less than
the aggregate amount of the Obligations, even if the Collateral Agent accepts the first offer received and does not offer such Collateral
to more than one offeree, and waives all rights that any Grantor may have to require that all or any part of such Collateral be marshaled
upon any sale (public or private) thereof. Each Grantor hereby acknowledges that (i) any such sale of its respective Collateral
by the Collateral Agent shall be made without warranty, (ii) the Collateral Agent may specifically disclaim any warranties of title,
possession, quiet enjoyment or the like, and (iii) such actions set forth in clauses (i) and (ii) above shall not
adversely affect the commercial reasonableness of any such sale of Collateral. In addition to the foregoing, (1) upon written notice
to any Grantor from the Collateral Agent after and during the continuance of an Event of Default, such Grantor shall cease any use of
the Intellectual Property or any trademark, patent or copyright similar thereto for any purpose described in such notice; (2) the
Collateral Agent may, at any time and from time to time after and during the continuance of an Event of Default, upon 10 days’
prior notice to such Grantor, license, whether general, special or otherwise, and whether on an exclusive or non-exclusive basis, any
of the Intellectual Property, throughout the universe for such term or terms, on such conditions, and in such manner, as the Collateral
Agent shall in its sole discretion determine; and (3) the Collateral Agent may, at any time, pursuant to the authority granted in
Section 7 hereof or otherwise (such authority being effective upon the occurrence and during the continuance of an Event
of Default), execute and deliver on behalf of such Grantor, one or more instruments of assignment of the Intellectual Property (or any
application or registration thereof), in form suitable for filing, recording or registration in any country.
(b) Any
cash held by the Collateral Agent as Collateral and all Cash Proceeds received by the Collateral Agent in respect of any sale or disposition
of or collection from, or other realization upon, all or any part of the Collateral shall be applied as follows (subject to the provisions
of the Securities Purchase Agreement): first, to pay any fees, indemnities or expense reimbursements then due to the Collateral
Agent (including, without limitation, those described in Section 9 hereof); second, to pay any fees, indemnities or
expense reimbursements then due to the Noteholders, on a pro rata basis; third to pay interest due under the Notes owing to the
Noteholders, on a pro rata basis; fourth, to pay or prepay principal in respect of the Notes, whether or not then due, owing to
the Noteholders, on a pro rata basis; fifth, to pay or prepay any other Obligations, whether or not then due, in such order and
manner as the Collateral Agent shall elect, consistent with the provisions of the Securities Purchase Agreement. Any surplus of such
cash or Cash Proceeds held by the Collateral Agent and remaining after the full performance and Payment in Full of all of the Obligations
shall be paid over to whomsoever shall be lawfully entitled to receive the same or as a court of competent jurisdiction shall direct.
(c) In
the event that the proceeds of any such sale, disposition, collection or realization are insufficient to pay all amounts to which the
Collateral Agent and the Noteholders are legally entitled, each Grantor shall be, jointly and severally, liable for the deficiency, together
with interest thereon at the highest rate specified in the Notes for interest on overdue principal thereof or such other rate as shall
be fixed by applicable law, together with the costs of collection and the reasonable fees, costs, expenses and other charges of any attorneys
employed by the Collateral Agent to collect such deficiency.
(d) To
the extent that applicable law imposes duties on the Collateral Agent to exercise rights and remedies in a commercially reasonable manner,
each Grantor acknowledges and agrees that it is commercially reasonable for the Collateral Agent (i) to fail to incur expenses deemed
significant by the Collateral Agent to prepare Collateral for disposition or otherwise to transform raw material or work in process into
finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral
to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection
or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Account Debtors
or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection
remedies against Account Debtors and other Persons obligated on Collateral directly or through the use of collection agencies and other
collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether
or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as any Grantor,
for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers
to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral
by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable
capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets,
(x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit
enhancements to insure the Collateral Agent against risks of loss, collection or disposition of Collateral or to provide to the Collateral
Agent a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by the Collateral
Agent, to obtain the services of brokers, investment bankers, consultants, attorneys and other professionals to assist the Collateral
Agent in the collection or disposition of any of the Collateral. Each Grantor acknowledges that the purpose of this section is to provide
non-exhaustive indications of what actions or omissions by the Collateral Agent would be commercially reasonable in the Collateral Agent’s
exercise of rights and remedies against the Collateral and that other actions or omissions by the Collateral Agent shall not be deemed
commercially unreasonable solely on account of not being indicated in this section. Without limitation of the foregoing, nothing contained
in this section shall be construed to grant any rights to any Grantor or to impose any duties on the Collateral Agent that would not
have been granted or imposed by this Agreement or by applicable law in the absence of this section.
(e) The
Collateral Agent shall not be required to marshal any present or future collateral security (including, but not limited to, this Agreement
and the Collateral) for, or other assurances of payment of, the Obligations or any of them or to resort to such collateral security or
other assurances of payment in any particular order, and all of the Collateral Agent’s rights and remedies hereunder and in respect
of such collateral security and other assurances of payment shall be cumulative and in addition to all other rights and remedies, however
existing or arising. To the extent that any Grantor lawfully may, each Grantor hereby agrees that it will not invoke any law relating
to the marshaling of collateral which might cause delay in or impede the enforcement of the Collateral Agent’s rights and remedies
under this Agreement or under any other instrument creating or evidencing any of the Obligations or under which any of the Obligations
is outstanding or by which any of the Obligations is secured or payment thereof is otherwise assured, and, to the extent that it lawfully
may, each Grantor hereby irrevocably waives the benefits of all such laws.
Section 9. Indemnity
and Expenses.
(a) Each
Grantor agrees, jointly and severally, to defend, protect, indemnify and hold the Collateral Agent and each of the Noteholders harmless
from and against any and all claims, damages, losses, liabilities, obligations, penalties, fees, costs and expenses (including, without
limitation, reasonable legal fees, costs, expenses, and disbursements of such Person’s counsel) to the extent that they arise out
of or otherwise result from this Agreement (including, without limitation, enforcement of this Agreement), except to the extent resulting
from such Person’s gross negligence or willful misconduct, as determined by a final judgment of a court of competent jurisdiction
no longer subject to appeal.
(b) Each
Grantor agrees, jointly and severally, to pay to the Collateral Agent upon demand the amount of any and all costs and expenses, including
the reasonable fees, costs, expenses and disbursements of counsel for the Collateral Agent and of any experts and agents (including,
without limitation, any collateral trustee which may act as agent of the Collateral Agent), which the Collateral Agent may incur in connection
with (i) the preparation, negotiation, execution, delivery, recordation, administration, amendment, waiver or other modification
or termination of this Agreement, (ii) the custody, preservation, use or operation of, or the sale of, collection from, or other
realization upon, any Collateral, (iii) the exercise or enforcement of any of the rights or remedies of the Collateral Agent hereunder,
or (iv) the failure by any Grantor to perform or observe any of the provisions hereof.
Section 10. Notices,
Etc. All notices and other communications provided for hereunder shall be in writing and shall be mailed (by certified mail, first-class
postage prepaid and return receipt requested), telecopied, e-mailed or delivered, if to any Grantor, to the Company’s address,
or if to the Collateral Agent or any Noteholder, to it at its respective address, each as set forth in Section 9(f) of the
Securities Purchase Agreement; or as to any such Person, at such other address as shall be designated by such Person in a written notice
to all other parties hereto complying as to delivery with the terms of this Section 10. All such notices and other communications
shall be effective (a) if sent by certified mail, return receipt requested, when received or five Business Days after deposited
in the mails, whichever occurs first, (b) if telecopied or e-mailed, when transmitted (during normal business hours) and confirmation
is received, and otherwise, the day after the notice or communication was transmitted and confirmation is received, or (c) if delivered
in person, upon delivery. For the avoidance of doubt, all Foreign Subsidiaries, as Grantors, hereby appoint the Company as its agent
for receipt of service of process and all notices and other communications in the United States at the address specified below.
Section 11. Miscellaneous.
(a) No
amendment of any provision of this Agreement shall be effective unless it is in writing and signed by each Grantor and the Collateral
Agent (and approved by the Required Holders), and no waiver of any provision of this Agreement, and no consent to any departure by each
Grantor therefrom, shall be effective unless it is in writing and signed by each Grantor and the Collateral Agent (and approved by the
Required Holders), and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for
which given. No amendment, modification or waiver of this Agreement shall be effective to the extent that it (1) applies to fewer
than all of the holders of Notes or (2) imposes any obligation or liability on any holder of Notes without such holder’s prior
written consent (which may be granted or withheld in such holder’s sole and absolute discretion).
(b) No
failure on the part of the Collateral Agent to exercise, and no delay in exercising, any right or remedy hereunder or under any of the
other Transaction Documents shall operate as a waiver thereof; nor shall any single or partial exercise of any such right or remedy preclude
any other or further exercise thereof or the exercise of any other right or remedy. The rights and remedies of the Collateral Agent or
any Noteholder provided herein and in the other Transaction Documents are cumulative and are in addition to, and not exclusive of, any
rights or remedies provided by law. The rights and remedies of the Collateral Agent or any Noteholder under any of the other Transaction
Documents against any party thereto are not conditional or contingent on any attempt by such Person to exercise any of its rights or
remedies under any of the other Transaction Documents against such party or against any other Person, including but not limited to, any
Grantor.
(c) Any
provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without invalidating the remaining portions hereof or thereof or affecting the validity
or enforceability of such provision in any other jurisdiction.
(d) This
Agreement shall create a continuing Lien on and security interest in the Collateral and shall (i) remain in full force and effect
until the full performance and Payment in Full of the Obligations, and (ii) be binding on each Grantor and all other Persons who
become bound as debtor to this Agreement in accordance with Section 9-203(d) of the Code and shall inure, together with all
rights and remedies of the Collateral Agent and the Noteholders hereunder, to the ratable benefit of the Collateral Agent and the Noteholders
and their respective permitted successors, transferees and assigns. Without limiting the generality of clause (ii) of the immediately
preceding sentence, without notice to any Grantor, the Collateral Agent and the Noteholders may assign or otherwise transfer their rights
and obligations under this Agreement and any of the other Transaction Documents, to any other Person and such other Person shall thereupon
become vested with all of the benefits in respect thereof granted to the Collateral Agent and the Noteholders herein or otherwise. Upon
any such assignment or transfer, all references in this Agreement to the Collateral Agent or any such Noteholder shall mean the assignee
of the Collateral Agent or such Noteholder. None of the rights or obligations of any Grantor hereunder may be assigned, delegated or
otherwise transferred without the prior written consent of the Collateral Agent in its sole and absolute discretion, and any such assignment,
delegation or transfer without such consent of the Collateral Agent shall be null and void.
(e) Upon
the full performance and Payment in Full of the Obligations, (i) this Agreement and the security interests created hereby shall
terminate and all rights to the Collateral shall revert to the respective Grantor that granted such security interests hereunder, and
(ii) the Collateral Agent will, upon any Grantor’s request and at such Grantor’s expense, (A) return to such Grantor
such of the Collateral as shall not have been sold or otherwise disposed of or applied pursuant to the terms hereof and (B) execute
and deliver to such Grantor such documents as such Grantor shall reasonably request to evidence such termination, all without any representation,
warranty or recourse whatsoever.
(f) Governing
Law; Jurisdiction; Jury Trial.
(i) All
questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by the internal laws
of the State of New York, without giving effect to any provision or rule of law (whether of the State of New York or any other jurisdictions)
that would cause the application of the laws of any jurisdiction other than the State of New York.
(ii) Each
Grantor 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 under any of the other Transaction Documents
or with any transaction contemplated hereby or thereby, and hereby irrevocably waives, and agrees not to assert in any suit, action or
proceeding, any claim, defense or objection that it is not personally subject to the jurisdiction of any such court, that such suit,
action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Each party
hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address for such notices to it under Section 9(f) of the Securities Purchase 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 manner permitted by law. Nothing contained herein shall be deemed or
operate to preclude the Collateral Agent or the Noteholders from bringing suit or taking other legal action against any Grantor in any
other jurisdiction to collect on a Grantor’s obligations or to enforce a judgment or other court ruling in favor of the Collateral
Agent or a Noteholder.
(iii) WAIVER
OF JURY TRIAL, ETC. EACH GRANTOR IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR
THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR UNDER ANY OTHER TRANSACTION DOCUMENT OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT,
ANY OTHER TRANSACTION DOCUMENT OR ANY TRANSACTION CONTEMPLATED HEREBY OR THEREBY.
(iv) Each
Grantor irrevocably and unconditionally waives any right it may have to claim or recover in any legal action, suit or proceeding referred
to in this Section any special, exemplary, indirect, incidental, punitive or consequential damages.
(g) Section headings
herein are included for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.
(h) This
Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which shall
be deemed to be an original, but all of which taken together constitute one and the same agreement. Delivery of any executed counterpart
of a signature page of this Agreement by pdf, facsimile or other electronic transmission shall be effective as delivery of a manually
executed counterpart of this Agreement.
(i) This
Agreement shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Obligations is
rescinded or must otherwise be returned by the Collateral Agent, any Noteholder or any other Person (upon (i) the occurrence of
any Insolvency Proceeding of any of the Company or any Grantor or (ii) otherwise, in all cases as though such payment had not been
made).
Section 12. Material
Non-Public Information. Upon receipt or delivery by any Grantor of any notice in accordance with the terms of this Agreement, unless
such Grantor has in good faith determined that the matters relating to such notice do not constitute material, non-public information
relating to the Grantor or any of its Subsidiaries, such Grantor shall within one (1) Business Day after any such receipt or delivery
publicly disclose such material, non-public information on a Current Report on Form 8-K or otherwise. In the event that such Grantor
believes that a notice contains material, non-public information relating to such Grantor or any of its Subsidiaries, such Grantor so
shall indicate to the Collateral Agent and any applicable Noteholder contemporaneously with delivery of such notice, and in the absence
of any such indication, the Collateral Agent and each Noteholder shall be allowed to presume that all matters relating to such notice
do not constitute material, non-public information relating to such Grantor or its Subsidiaries. Nothing contained in this Section 12
shall limit any obligations of any Grantor, or any rights or remedies of the Collateral Agent or any Noteholder, under Section 4(i) of
the Securities Purchase Agreement.
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IN WITNESS WHEREOF, each Grantor
has caused this Agreement to be executed and delivered by its officer thereunto duly authorized, as of the date first above written.
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BIT ORIGIN LTD |
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SONICHASH LLC |
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SONIC AUSPICE DC LLC |
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EXHIBIT A
FORM OF
INTELLECTUAL PROPERTY SECURITY AGREEMENT
INTELLECTUAL PROPERTY SECURITY AGREEMENT
This INTELLECTUAL PROPERTY
SECURITY AGREEMENT (as amended, modified, supplemented, renewed, restated or replaced from time to time, this “IP Security Agreement”),
dated _____, 2023, is made by the Persons listed on the signature pages hereof (collectively, the “Grantors”)
in favor of [ ], in its capacity as collateral agent (the “Collateral Agent”) for the Noteholders. All capitalized
terms not otherwise defined herein shall have the meanings respectively ascribed thereto in the Security Agreement (as defined below).
WHEREAS, Bit Origin Ltd, a
Cayman Islands exempted company (the “Company”) and each party listed as a “Buyer” therein (collectively,
the “Buyers”) are parties to that certain Securities Purchase Agreement, dated _______, 2023, pursuant to which the
Company shall be required to sell, and the Buyers shall purchase or have the right to purchase, the “Notes” (as defined therein)
issued pursuant thereto (as such Notes may be amended, modified, supplemented, renewed, restated or replaced from time to time in accordance
with the terms thereof, collectively, the “Notes”);
WHEREAS, it is a condition
precedent to the purchase of the Notes under the Securities Purchase Agreement that each Grantor has executed and delivered that certain
Security and Pledge Agreement, dated _____, 2023, made by the Grantors to the Collateral Agent (as amended, modified, supplemented, renewed,
restated or replaced from time to time, the “Security Agreement”);
WHEREAS, under the terms of
the Security Agreement, the Grantors have granted to the Collateral Agent, for the ratable benefit of the Collateral Agent and the Noteholders,
a Lien on and security interest in, among other property, certain intellectual property of the Grantors, and have agreed as a condition
thereof to execute this IP Security Agreement for recording with the U.S. Patent and Trademark Office, the United States Copyright Office
and other governmental authorities; and
WHEREAS, the Grantors have
determined that the execution, delivery and performance of this IP Security Agreement directly benefits, and is in the best interest
of, the Grantors.
NOW, THEREFORE, in consideration
of the premises and the agreements herein and in order to induce the Buyers to perform under the Securities Purchase Agreement, each
Grantor agrees with the Collateral Agent, for the ratable benefit of the Collateral Agent and the Noteholders, as follows:
SECTION 1. Grant of
Security. As collateral security for the due and punctual payment and performance in full of the Obligations, as and when due, each
Grantor hereby pledges and assigns to the Collateral Agent, its successors and permitted assigns, and hereby grants to the Collateral
Agent, its successors and permitted assigns, for the ratable benefit of the Collateral Agent and the Noteholders, a continuing Lien on
and security interest in, all of such Grantor’s right, title and interest in, to and under the following (the “Collateral”):
(i) the
Patents and Patent applications set forth in Schedule A hereto;
(ii) the
Trademark and service mark registrations and applications set forth in Schedule B hereto (provided that no security interest
shall be granted in United States intent-to-use trademark applications to the extent that, and solely during the period in which, the
grant of a security interest therein would impair the validity or enforceability of such intent-to-use trademark applications under applicable
federal law), together with the goodwill symbolized thereby;
(iii) all
Copyrights, whether registered or unregistered, now owned or hereafter acquired by such Grantor, including, without limitation, the copyright
registrations and applications and exclusive copyright licenses set forth in Schedule C hereto;
(iv) all
reissues, divisions, continuations, continuations-in-part, extensions, renewals and reexaminations of any of the foregoing, all rights
in the foregoing provided by international treaties or conventions, all rights corresponding thereto throughout the world and all other
rights of any kind whatsoever of such Grantor accruing thereunder or pertaining thereto;
(v) any
and all claims for damages and injunctive relief for past, present and future infringement, dilution, misappropriation, violation, misuse
or breach with respect to any of the foregoing, with the right, but not the obligation, to sue for and collect, or otherwise recover,
such damages; and
(vi) any
and all Proceeds, including without limitation Cash and Noncash Proceeds of, collateral for, income, royalties and other payments now
or hereafter due and payable with respect to, and Supporting Obligations relating to, any and all of the collateral of or arising from
any of the foregoing.
SECTION 2. Security
for Obligations. The grant of a Lien on and security interest in, the Collateral by each Grantor under this IP Security Agreement
constitutes continuing collateral security for the payment and performance of all Obligations of such Grantor now or hereafter existing
under or in respect of the Notes and the Transaction Documents, whether direct or indirect, absolute or contingent, and whether for principal,
reimbursement obligations, interest, premiums, penalties, fees, indemnifications, contract causes of action, costs, expenses or otherwise.
SECTION 3. Recordation.
Each Grantor authorizes and requests that the Register of Copyrights, the Commissioner for Patents and the Commissioner for Trademarks
and any other applicable government officer record this IP Security Agreement.
SECTION 4. Execution
in Counterparts. This IP Security Agreement may be executed in any number of counterparts and by different parties hereto in separate
counterparts, each of which shall be deemed to be an original, but all of which taken together constitute one and the same agreement.
SECTION 5. Grants,
Rights and Remedies. This IP Security Agreement has been entered into in conjunction with the provisions of the Security Agreement.
Each Grantor does hereby acknowledge and confirm that the grant of the Lien and security interest hereunder to, and the rights and remedies
of, the Collateral Agent with respect to the Collateral are more fully set forth in the Security Agreement, the terms and provisions
of which are incorporated herein by reference as if fully set forth herein.
SECTION 6. Governing Law; Jurisdiction;
Jury Trial.
(i) All
questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by the internal laws
of the State of New York, without giving effect to any provision or rule of law (whether of the State of New York or any other jurisdictions)
that would cause the application of the laws of any jurisdiction other than the State of New York.
(ii) Each
Grantor hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in The City of New York, Borough
of Manhattan, New York, for the adjudication of any dispute hereunder or in connection herewith or under any of the other Transaction
Documents or with any transaction contemplated hereby or thereby, and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim, defense or objection that it is not personally subject to the jurisdiction of any such court, that such
suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Each
party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding
by mailing a copy thereof to such party at the address for such notices to it under Section 9(f) of the Securities Purchase
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 manner permitted by law. Nothing contained herein shall
be deemed or operate to preclude the Collateral Agent or the Noteholders from bringing suit or taking other legal action against any
Grantor in any other jurisdiction to collect on a Grantor’s obligations or to enforce a judgment or other court ruling in favor
of the Collateral Agent or a Noteholder.
(iii) WAIVER
OF JURY TRIAL, ETC. EACH GRANTOR IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR
THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR UNDER ANY OTHER TRANSACTION DOCUMENT OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT,
ANY OTHER TRANSACTION DOCUMENT OR ANY TRANSACTION CONTEMPLATED HEREBY OR THEREBY.
(iv) Each
Grantor irrevocably and unconditionally waives any right it may have to claim or recover in any legal action, suit or proceeding referred
to in this Section any special, exemplary, indirect, incidental, punitive or consequential damages.
[The remainder of the page is intentionally
left blank]
IN WITNESS WHEREOF, each Grantor
has caused this Agreement to be duly executed and delivered by its officer thereunto duly authorized as of the date first above written.
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BIT ORIGIN LTD |
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IN WITNESS WHEREOF, each Grantor
has caused this Agreement to be duly executed and delivered by its officer thereunto duly authorized as of the date first above written.
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SONIC AUSPICE DC LLC |
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IN WITNESS WHEREOF, each Grantor
has caused this Agreement to be duly executed and delivered by its officer thereunto duly authorized as of the date first above written.
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SONICHASH LLC |
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Exhibit 10.4
EXECUTION
VERSION
GUARANTY
This GUARANTY, dated as of __________,
2023 (this “Guaranty”), is made by each of the undersigned (each a “Guarantor”, and collectively,
the “Guarantors”), in favor of [ ], a [ ], in its capacity as collateral agent (in such capacity, the “Collateral
Agent” as hereinafter further defined) for the “Buyers” party to the Securities Purchase Agreement (each as defined
below).
W I T N E S S E T H:
WHEREAS, Bit Origin Ltd, a Cayman
Islands exempt company, with offices located at 27F, Samsung Hub, 3 Church Street, Singapore 049483 (the “Company”)
and each party listed as a “Buyer” on the Schedule of Buyers attached thereto (collectively, the “Buyers”)
are parties to the Securities Purchase Agreement, dated as of the date hereof (as amended, restated, extended, replaced or otherwise modified
from time to time, the “Securities Purchase Agreement”), pursuant to which the Company shall be required to sell, and
the Buyers shall purchase or have the right to purchase, the “Notes” issued pursuant thereto (as such Notes may be amended,
restated, extended, replaced or otherwise modified from time to time in accordance with the terms thereof, collectively, the “Notes”);
WHEREAS, the Securities Purchase
Agreement requires that the Guarantors execute and deliver to the Collateral Agent, (i) a guaranty guaranteeing all of the obligations
of the Company under the Securities Purchase Agreement, the Notes and the other Transaction Documents (as defined below); and (ii) a
Security and Pledge Agreement, dated as of the date hereof, granting the Collateral Agent a lien on and security interest in all of their
assets and properties (the “Security Agreement”); and
WHEREAS, each Guarantor has
determined that the execution, delivery and performance of this Guaranty directly benefits, and is in the best interest of, such Guarantor.
NOW, THEREFORE, in consideration
of the premises and the agreements herein and in order to induce the Buyers to perform under the Securities Purchase Agreement, each Guarantor
hereby agrees with each Buyer as follows:
Section 1. Definitions.
Reference is hereby made to the Securities Purchase Agreement and the Notes for a statement of the terms thereof. All terms used in this
Guaranty and the recitals hereto which are defined in the Securities Purchase Agreement or the Notes, and which are not otherwise defined
herein shall have the same meanings herein as set forth therein. In addition, the following terms when used in the Guaranty shall have
the meanings set forth below:
“Bankruptcy Code”
means Chapter 11 of Title 11 of the United States Code, 11 U.S.C §§ 101 et seq. (or other applicable bankruptcy, insolvency
or similar laws).
“Business Day”
means any day other than Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to
remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized or required by law to remain
closed due to “stay at home”, “shelter-in-place”, “non-essential employee” or any other similar orders
or restrictions or the closure of any physical branch locations at the direction of any governmental authority so long as the electronic
funds transfer systems (including for wire transfers) of commercial banks in The City of New York generally are open for use by customers
on such day.
“Buyer”
or “Buyers” shall have the meaning set forth in the recitals hereto.
“Capital Stock”
means (i) with respect to any Person that is a corporation, any and all shares, interests, participations or other equivalents (however
designated and whether or not voting) of corporate stock (including, without limitation, any warrants, options, rights or other securities
exercisable or convertible into equity interests or securities of such Person), and (ii) with respect to any Person that is not a
corporation, any and all partnership, membership or other equity interests of such Person.
“Collateral”
means all assets and properties of the Company and each Guarantor, wherever located and whether now or hereafter existing and whether
now owned or hereafter acquired, of every kind and description, tangible or intangible, including, without limitation, the collateral
described in Section 3(a) of the Security Agreement.
“Collateral Agent”
shall have the meaning set forth in the recitals hereto.
“Company” shall have the meaning
set forth in the recitals hereto.
“Governmental Authority”
means any nation, state, county, city, town, village, district, or other political jurisdiction of any nature, federal, state, local,
municipal, foreign, or other government, governmental or quasi-governmental authority of any nature (including any governmental agency,
branch, department, official, or entity and any court or other tribunal), multi-national organization or body; or body exercising, or
entitled to exercise, any administrative, executive, judicial, legislative, police, regulatory, or taxing authority or power of any nature
or instrumentality of any of the foregoing, including any entity or enterprise owned or controlled by a government or a public international
organization or any of the foregoing.
“Guaranteed Obligations”
shall have the meaning set forth in Section 2 of this Guaranty.
“Guarantor”
or “Guarantors” shall have the meaning set forth in the recitals hereto.
“Indemnified Party”
shall have the meaning set forth in Section 13(a) of this Guaranty.
“Insolvency Proceeding”
means any proceeding commenced by or against any Person under any provision of the Bankruptcy Code or under any other bankruptcy or insolvency
law, assignments for the benefit of creditors, formal or informal moratoria, compositions, or extensions generally with creditors, or
proceedings seeking reorganization, arrangement, or other similar relief.
“Notes”
shall have the meaning set forth in the recitals hereto.
“Obligations”
shall have the meaning set forth in Section 4 of the Security Agreement.
“Other Taxes”
shall have the meaning set forth in Section 12(a)(iv) of this Guaranty.
“Paid in Full”
or “Payment in Full” means the indefeasible payment in full in cash of all of the Guaranteed Obligations.
“Person”
means an individual, corporation, limited liability company, partnership, association, joint-stock company, trust, unincorporated organization,
joint venture or other enterprise or entity or Governmental Authority.
“Securities Purchase
Agreement” shall have the meaning set forth in the recitals hereto.
“Security Agreement”
shall have the meaning set forth in the recitals hereto.
“Subsidiary”
means any Person in which a Guarantor directly or indirectly, (i) owns any of the outstanding Capital Stock or holds any equity
or similar interest of such Person or (ii) controls or operates all or any part of the business, operations or administration of
such Person, and all of the foregoing, collectively, “Subsidiaries”.
“Taxes”
shall have the meaning set forth in Section 12(a) of this Guaranty.
“Transaction Party”
means the Company and each Guarantor, collectively, “Transaction Parties”.
Section 2. Guaranty.
(a) The
Guarantors, jointly and severally, hereby unconditionally and irrevocably, guaranty to the Collateral Agent, for the benefit of the Collateral
Agent and the Buyers, the punctual payment, as and when due and payable, by stated maturity or otherwise, of all Obligations, including,
without limitation, all interest, make-whole and other amounts that accrue after the commencement of any Insolvency Proceeding of the
Company or any Guarantor, whether or not the payment of such interest, make-whole and/or other amounts are enforceable or are allowable
in such Insolvency Proceeding, and all fees, interest, premiums, penalties, causes of actions, costs, commissions, expense reimbursements,
indemnifications and all other amounts due or to become due under any of the Transaction Documents (all of the foregoing collectively
being the “Guaranteed Obligations”), and agrees to pay any and all costs and expenses (including counsel fees and expenses)
incurred by the Collateral Agent in enforcing any rights under this Guaranty or any other Transaction Document. Without limiting the generality
of the foregoing, each Guarantor’s liability hereunder shall extend to all amounts that constitute part of the Guaranteed Obligations
and would be owed by the Company to the Collateral Agent or any Buyer under the Securities Purchase Agreement and the Notes but for the
fact that they are unenforceable or not allowable due to the existence of an Insolvency Proceeding involving any Transaction Party.
(b) Each
Guarantor, and by its acceptance of this Guaranty, the Collateral Agent and each Buyer, hereby confirms that it is the intention of all
such Persons that this Guaranty and the Guaranteed Obligations of each Guarantor hereunder not constitute a fraudulent transfer or conveyance
for purposes of the Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign,
federal, provincial, state, or other applicable law to the extent applicable to this Guaranty and the Guaranteed Obligations of each Guarantor
hereunder. To effectuate the foregoing intention, the Collateral Agent, the Buyers and the Guarantors hereby irrevocably agree that the
Guaranteed Obligations of each Guarantor under this Guaranty at any time shall be limited to the maximum amount as will result in the
Guaranteed Obligations of such Guarantor under this Guaranty not constituting a fraudulent transfer or conveyance.
Section 3. Guaranty
Absolute; Continuing Guaranty; Assignments.
(a) The
Guarantors, jointly and severally, guaranty that the Guaranteed Obligations will be paid strictly in accordance with the terms of the
Transaction Documents, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such
terms or the rights of the Collateral Agent or any Buyer with respect thereto. The obligations of each Guarantor under this Guaranty are
independent of the Guaranteed Obligations, and a separate action or actions may be brought and prosecuted against any Guarantor to enforce
such obligations, irrespective of whether any action is brought against any Transaction Party or whether any Transaction Party is joined
in any such action or actions. The liability of any Guarantor under this Guaranty shall be as a primary obligor (and not merely as a surety)
and shall be irrevocable, absolute and unconditional irrespective of, and each Guarantor hereby irrevocably waives, to the extent permitted
by law, any defenses it may now or hereafter have in any way relating to, any or all of the following:
(i) any
lack of validity or enforceability of any Transaction Document;
(ii) any
change in the time, manner or place of payment of, or in any other term of, all or any of the Guaranteed Obligations, or any other amendment
or waiver of or any consent to departure from any Transaction Document, including, without limitation, any increase in the Guaranteed
Obligations resulting from the extension of additional credit to any Transaction Party or extension of the maturity of any Guaranteed
Obligations or otherwise;
(iii) any
taking, exchange, release or non-perfection of any Collateral;
(iv) any
taking, release or amendment or waiver of or consent to departure from any other guaranty, for all or any of the Guaranteed Obligations;
(v) any
change, restructuring or termination of the corporate, limited liability company or partnership structure or existence of any Transaction
Party;
(vi) any
manner of application of Collateral or any other collateral, or proceeds thereof, to all or any of the Guaranteed Obligations, or any
manner of sale or other disposition of any Collateral or any other collateral for all or any of the Guaranteed Obligations or any other
Obligations of any Transaction Party under the Transaction Documents or any other assets of any Transaction Party or any of its Subsidiaries;
(vii) any
failure of the Collateral Agent or any Buyer to disclose to any Transaction Party any information relating to the business, condition
(financial or otherwise), operations, performance, properties or prospects of any other Transaction Party now or hereafter known to the
Collateral Agent or any Buyer (each Guarantor waiving any duty on the part of the Collateral Agent or any Buyer to disclose such information);
(viii) taking
any action in furtherance of the release of any Guarantor or any other Person that is liable for the Obligations from all or any part
of any liability arising under or in connection with any Transaction Document without the prior written consent of the Collateral Agent;
or
(ix) any
other circumstance (including, without limitation, any statute of limitations) or any existence of or reliance on any representation by
the Collateral Agent or any Buyer that might otherwise constitute a defense available to, or a discharge of, any Transaction Party or
any other guarantor or surety.
(b) This
Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Guaranteed Obligations
is rescinded or must otherwise be returned by the Collateral Agent, any Buyer, or any other Person upon the insolvency, bankruptcy or
reorganization of any Transaction Party or otherwise, all as though such payment had not been made.
(c) This
Guaranty is a continuing guaranty and shall (i) remain in full force and effect until Payment in Full of the Guaranteed Obligations
(other than inchoate indemnity obligations) and shall not terminate for any reason prior to the respective Maturity Date of each Note
(other than Payment in Full of the Guaranteed Obligations) and (ii) be binding upon each Guarantor and its respective successors
and assigns. This Guaranty shall inure to the benefit of and be enforceable by the Collateral Agent, the Buyers, and their respective
successors, and permitted pledgees, transferees and assigns. Without limiting the generality of the foregoing sentence, the Collateral
Agent or any Buyer may pledge, assign or otherwise transfer all or any portion of its rights and obligations under and subject to the
terms of any Transaction Document to any other Person, and such other Person shall thereupon become vested with all the benefits in respect
thereof granted to the Collateral Agent or such Buyer (as applicable) herein or otherwise, in each case as provided in the Securities
Purchase Agreement or such Transaction Document.
Section 4. Waivers.
To the extent permitted by applicable law, each Guarantor hereby waives promptness, diligence, protest, notice of acceptance and any
other notice or formality of any kind with respect to any of the Guaranteed Obligations and this Guaranty and any requirement that the
Collateral Agent exhaust any right or take any action against any Transaction Party or any other Person or any Collateral. Each Guarantor
acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated herein and that the waiver
set forth in this Section 4 is knowingly made in contemplation of such benefits. The Guarantors hereby waive any right to
revoke this Guaranty, and acknowledge that this Guaranty is continuing in nature and applies to all Guaranteed Obligations, whether existing
now or in the future. Without limiting the foregoing, to the extent permitted by applicable law, each Guarantor hereby unconditionally
and irrevocably waives (a) any defense arising by reason of any claim or defense based upon an election of remedies by the Collateral
Agent or any Buyer that in any manner impairs, reduces, releases or otherwise adversely affects the subrogation, reimbursement, exoneration,
contribution or indemnification rights of such Guarantor or other rights of such Guarantor to proceed against any of the other Transaction
Parties, any other guarantor or any other Person or any Collateral, and (b) any defense based on any right of set-off or counterclaim
against or in respect of the Guaranteed Obligations of such Guarantor hereunder. Each Guarantor hereby unconditionally and irrevocably
waives any duty on the part of the Collateral Agent or any Buyer to disclose to such Guarantor any matter, fact or thing relating to
the business, condition (financial or otherwise), operations, performance, properties or prospects of any other Transaction Party or
any of its Subsidiaries now or hereafter known by the Collateral Agent or a Buyer.
Section 5. Subrogation.
No Guarantor may exercise any rights that it may now or hereafter acquire against any Transaction Party or any other guarantor that arise
from the existence, payment, performance or enforcement of any Guarantor’s obligations under this Guaranty, including, without
limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any
claim or remedy of the Collateral Agent or any Buyer against any Transaction Party or any other guarantor or any Collateral, whether
or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right
to take or receive from any Transaction Party or any other guarantor, directly or indirectly, in cash or other property or by set-off
or in any other manner, payment or security solely on account of such claim, remedy or right, unless and until there has been Payment
in Full of the Guaranteed Obligations. If any amount shall be paid to a Guarantor in violation of the immediately preceding sentence
at any time prior to Payment in Full of the Guaranteed Obligations and all other amounts payable under this Guaranty, such amount shall
be held in trust for the benefit of the Collateral Agent and shall forthwith be paid to the Collateral Agent to be credited and applied
to the Guaranteed Obligations and all other amounts payable under this Guaranty, whether matured or unmatured, in accordance with the
terms of the Transaction Document, or to be held as Collateral for any Guaranteed Obligations or other amounts payable under this Guaranty
thereafter arising. If (a) any Guarantor shall make payment to the Collateral Agent of all or any part of the Guaranteed Obligations,
and (b) there has been Payment in Full of the Guaranteed Obligations, the Collateral Agent will, at such Guarantor’s request
and expense, execute and deliver to such Guarantor appropriate documents, without recourse and without representation or warranty, necessary
to evidence the transfer by subrogation to such Guarantor of an interest in the Guaranteed Obligations resulting from such payment by
such Guarantor.
Section 6. Representations,
Warranties and Covenants.
(a) Each
Guarantor hereby represents and warrants as of the date first written above as follows:
(i) such
Guarantor (A) is a corporation, limited liability company or limited partnership duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization as set forth on the signature pages hereto, (B) has all requisite corporate,
limited liability company or limited partnership power and authority to conduct its business as now conducted and as presently contemplated
and to execute, deliver and perform its obligations under this Guaranty and each other Transaction Document to which such Guarantor is
a party, and to consummate the transactions contemplated hereby and thereby and (C) is duly qualified to do business and is in good
standing in each jurisdiction in which the character of the properties owned or leased by it or in which the transaction of its business
makes such qualification necessary except where the failure to be so qualified (individually or in the aggregate) would not result in
a Material Adverse Effect.
(ii) The
execution, delivery and performance by such Guarantor of this Guaranty and each other Transaction Document to which such Guarantor is
a party (A) have been duly authorized by all necessary corporate, limited liability company or limited partnership action, (B) do
not and will not contravene its charter, articles, certificate of formation or by-laws, its limited liability company or operating agreement
or its certificate of partnership or partnership agreement, as applicable, or any applicable law or any contractual restriction binding
on such Guarantor or its properties do not and will not result in or require the creation of any lien, security interest or encumbrance
(other than pursuant to any Transaction Document) upon or with respect to any of its properties, and (C) do not and will not result
in any default, noncompliance, suspension, revocation, impairment, forfeiture or nonrenewal of any material permit, license, authorization
or approval applicable to it or its operations or any of its properties.
(iii) No
authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or other Person is required
in connection with the due execution, delivery and performance by such Guarantor of this Guaranty or any of the other Transaction Documents
to which such Guarantor is a party (other than expressly provided for in any of the Transaction Documents).
(iv) This
Guaranty has been duly executed and delivered by each Guarantor and is, and each of the other Transaction Documents to which such Guarantor
is or will be a party, when executed and delivered, will be, a legal, valid and binding obligation of such Guarantor, enforceable against
such Guarantor in accordance with its terms, except as may be limited by the Bankruptcy Code or other applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance, suretyship or similar laws and equitable principles (regardless of whether enforcement
is sought in equity or at law).
(v) There
is no pending or, to the best knowledge of such Guarantor, threatened action, suit or proceeding against such Guarantor or to which any
of the properties of such Guarantor is subject, before any court or other Governmental Authority or any arbitrator that (A) if adversely
determined, could reasonably be expected to have a Material Adverse Effect or (B) relates to this Guaranty or any of the other Transaction
Documents to which such Guarantor is a party or any transaction contemplated hereby or thereby.
(vi) Such
Guarantor (A) has read and understands the terms and conditions of the Securities Purchase Agreement and the other Transaction Documents,
and (B) now has and will continue to have independent means of obtaining information concerning the affairs, financial condition
and business of the Company and the other Transaction Parties, and has no need of, or right to obtain from the Collateral Agent or any
Buyer, any credit or other information concerning the affairs, financial condition or business of the Company or the other Transaction
Parties.
(vii) There
are no conditions precedent to the effectiveness of this Guaranty that have not been satisfied or waived.
(b) Each
Guarantor covenants and agrees that until Payment in Full of the Guaranteed Obligations, it will comply with each of the covenants (except
to the extent applicable only to a public company) which are set forth in Section 4 of the Securities Purchase Agreement as if such
Guarantor were a party thereto.
Section 7. Right
of Set-off. Upon the occurrence and during the continuance of any Event of Default, the Collateral Agent and any Buyer may,
and is hereby authorized to, at any time and from time to time, without notice to the Guarantors (any such notice being expressly waived
by each Guarantor) and to the fullest extent permitted by law, set-off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing by the Collateral Agent or any Buyer to or for the credit
or the account of any Guarantor against any and all obligations of the Guarantors now or hereafter existing under this Guaranty or any
other Transaction Document, irrespective of whether or not the Collateral Agent or any Buyer shall have made any demand under this Guaranty
or any other Transaction Document and although such obligations may be contingent or unmatured. The Collateral Agent and each Buyer agrees
to notify the relevant Guarantor promptly after any such set-off and application made by the Collateral Agent or such Buyer, provided
that the failure to give such notice shall not affect the validity of such set-off and application. The rights of the Collateral Agent
or any Buyer under this Section 7 are in addition to other rights and remedies (including, without limitation, other rights
of set-off) which the Collateral Agent or such Buyer may have under this Guaranty or any other Transaction Document in law or otherwise.
Section 8. Limitation
on Guaranteed Obligations.
(a) Notwithstanding
any provision herein contained to the contrary, each Guarantor’s liability hereunder shall be limited to an amount not to exceed
as of any date of determination the greater of:
(i) the
amount of all Guaranteed Obligations, plus interest thereon at the applicable Interest Rate as specified in the Note; and
(ii) the
amount which could be claimed by the Collateral Agent from any Guarantor under this Guaranty without rendering such claim voidable or
avoidable under the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or
similar statute or common law after taking into account, among other things, Guarantor’s right of contribution and indemnification.
(b) Each
Guarantor agrees that the Guaranteed Obligations may at any time and from time to time exceed the amount of the liability of such Guarantor
hereunder without impairing the guaranty hereunder or affecting the rights and remedies of the Collateral Agent or any Buyer hereunder
or under applicable law.
(c) No
payment made by the Company, any Guarantor, any other guarantor or any other Person or received or collected by the Collateral Agent or
any other Buyer from the Company, any of the Guarantors, any other guarantor or any other Person by virtue of any action or proceeding
or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Guaranteed Obligations
shall be deemed to modify, reduce, release or otherwise affect the liability of any Guarantor hereunder which shall, notwithstanding any
such payment (other than any payment made by such Guarantor in respect of the Guaranteed Obligations or any payment received or collected
from such Guarantor in respect of the Guaranteed Obligations), remain liable for the Guaranteed Obligations up to the maximum liability
of such Guarantor hereunder until after all of the Guaranteed Obligations and all other amounts payable under this Guaranty shall have
been Paid in Full.
Section 9. Notices,
Etc. Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Guaranty must
be in writing and will be deemed to have been delivered: (i) upon receipt, when delivered personally; (ii) upon receipt, when
sent by facsimile (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending
party); or (iii) one (1) Business Day after deposit with an nationally recognized overnight courier service with next day delivery
specified, in each case, properly addressed to the party to receive the same. All notices and other communications provided for hereunder
shall be sent, if to any Guarantor, to the Company’s address and/or facsimile number, or if to the Collateral Agent or any Buyer,
to it at its respective address and/or facsimile number, each as set forth in Section 9(f) of the Securities Purchase Agreement.
Section 10. Governing
Law; Jurisdiction. All questions concerning the construction, validity, enforcement and interpretation of this Guaranty shall be governed
by the internal laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether
of the State of New York or any other jurisdictions) that would cause the application of the laws of any jurisdiction other than the State
of New York. Each Guarantor hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in The City
of New York, Borough of Manhattan, New York, for the adjudication of any dispute hereunder or in connection herewith or under any of the
other Transaction Documents or with any transaction contemplated hereby or thereby, and hereby irrevocably waives, and agrees not to assert
in any suit, action or proceeding, any claim, obligation or defense that it is not personally subject to the jurisdiction of any such
court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action
or proceeding by mailing a copy thereof to such party at the address for such notices to it under Section 9(f) of the Securities
Purchase 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 manner permitted by law. Nothing contained herein shall be
deemed or operate to preclude the Collateral Agent or the Buyers from bringing suit or taking other legal action against any Guarantor
in any other jurisdiction to collect on a Guarantor’s obligations or to enforce a judgment or other court ruling in favor of the
Collateral Agent or a Buyer.
Section 11. WAIVER
OF JURY TRIAL, ETC. EACH GUARANTOR HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY
TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR UNDER ANY OTHER TRANSACTION DOCUMENT OR IN CONNECTION WITH OR ARISING OUT OF THIS
GUARANTY, ANY OTHER TRANSACTION DOCUMENT OR ANY TRANSACTION CONTEMPLATED HEREBY OR THEREBY.
Section 12. Taxes.
(a) All
payments made by any Guarantor hereunder or under any other Transaction Document shall be made in accordance with the terms of the respective
Transaction Document and shall be made without set-off, counterclaim, withholding, deduction or other defense. Without limiting the foregoing,
all such payments shall be made free and clear of and without deduction or withholding for any present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto, excluding taxes imposed on the net income of the
Collateral Agent or any Buyer by the jurisdiction in which the Collateral Agent or such Buyer is organized or where it has its principal
lending office (all such nonexcluded taxes, levies, imposts, deductions, charges, withholdings and liabilities, collectively or individually,
“Taxes”). If any Guarantor shall be required to deduct or to withhold any Taxes from or in respect of any amount payable
hereunder or under any other Transaction Document:
(i) the
amount so payable shall be increased to the extent necessary so that after making all required deductions and withholdings (including
Taxes on amounts payable to the Collateral Agent or any Buyer pursuant to this sentence) the Collateral Agent or each Buyer receives an
amount equal to the sum it would have received had no such deduction or withholding been made,
(ii) such
Guarantor shall make such deduction or withholding,
(iii) such
Guarantor shall pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law, and
(iv) as
promptly as possible thereafter, such Guarantor shall send the Collateral Agent or each Buyer an official receipt (or, if an official
receipt is not available, such other documentation as shall be satisfactory to the Collateral Agent, as the case may be) showing payment.
In addition, each Guarantor agrees to pay any present or future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies that arise from any payment made hereunder or from the execution, delivery, registration or enforcement of, or otherwise
with respect to, this Guaranty or any other Transaction Document (collectively, “Other Taxes”).
(b) Each
Guarantor hereby indemnifies and agrees to hold each Indemnified Party harmless from and against Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this Section 12) paid by any Indemnified
Party as a result of any payment made hereunder or from the execution, delivery, registration or enforcement of, or otherwise with
respect to, this Guaranty or any other Transaction Document, and any liability (including penalties, interest and expenses for nonpayment,
late payment or otherwise) arising therefrom or with respect thereto, whether or not such Taxes or Other Taxes were correctly or legally
asserted. This indemnification shall be paid within thirty (30) days from the date on which the Collateral Agent or such Buyer makes
written demand therefor, which demand shall identify the nature and amount of such Taxes or Other Taxes.
(c) If
any Guarantor fails to perform any of its obligations under this Section 12, such Guarantor shall indemnify the Collateral
Agent and each Buyer for any taxes, interest or penalties that may become payable as a result of any such failure. The obligations of
the Guarantors under this Section 12 shall survive the termination of this Guaranty and the payment of the Obligations and
all other amounts payable hereunder.
Section 13. Indemnification.
(a) Without
limitation of any other obligations of any Guarantor or remedies of the Collateral Agent or the Buyers under this Guaranty or applicable
law, except to the extent resulting from such Indemnified Party’s gross negligence or willful misconduct, as determined by a final
judgment of a court of competent jurisdiction no longer subject to appeal, each Guarantor shall, to the fullest extent permitted by law,
indemnify, defend and save and hold harmless the Collateral Agent and each Buyer and each of their affiliates and their respective officers,
directors, employees, agents and advisors (each, an “Indemnified Party”) from and against, and shall pay on demand,
any and all claims, damages, losses, liabilities and expenses (including, without limitation, reasonable fees and expenses of counsel)
that may be incurred by or asserted or awarded against any Indemnified Party in connection with or as a result of any failure of any Guaranteed
Obligations to be the legal, valid and binding obligations of any Transaction Party enforceable against such Transaction Party in accordance
with their terms.
(b) Each
Guarantor hereby also agrees that none of the Indemnified Parties shall have any liability (whether direct or indirect, in contract, tort
or otherwise) or any fiduciary duty or obligation to any of the Guarantors or any of their respective affiliates or any of their respective
officers, directors, employees, agents and advisors, and each Guarantor hereby agrees not to assert any claim against any Indemnified
Party on any theory of liability, for special, indirect, consequential, incidental or punitive damages arising out of or otherwise relating
to the facilities, the actual or proposed use of the proceeds of the advances, the Transaction Documents or any of the transactions contemplated
by the Transaction Documents.
Section 14. Miscellaneous.
(a) Each
Guarantor will make each payment hereunder in lawful money of the United States of America and in immediately available funds to the Collateral
Agent or each Buyer, at such address specified by the Collateral Agent or such Buyer from time to time by notice to the Guarantors.
(b) No
amendment or waiver of any provision of this Guaranty and no consent to any departure by any Guarantor therefrom shall in any event be
effective unless the same shall be in writing and signed by each Guarantor, the Collateral Agent and each Buyer, and then such waiver
or consent shall be effective only in the specific instance and for the specific purpose for which given.
(c) No
failure on the part of the Collateral Agent or any Buyer to exercise, and no delay in exercising, any right or remedy hereunder or under
any other Transaction Document shall operate as a waiver thereof, nor shall any single or partial exercise of any right hereunder or under
any Transaction Document preclude any other or further exercise thereof or the exercise of any other right or remedy. The rights and remedies
of the Collateral Agent and the Buyers provided herein and in the other Transaction Documents are cumulative and are in addition to, and
not exclusive of, any rights or remedies provided by law. The rights and remedies of the Collateral Agent and the Buyers under any Transaction
Document against any party thereto are not conditional or contingent on any attempt by the Collateral Agent or any Buyer to exercise any
of their respective rights or remedies under any other Transaction Document against such party or against any other Person.
(d) Any
provision of this Guaranty that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the remaining portions hereof or affecting the validity or enforceability
of such provision in any other jurisdiction.
(e) This
Guaranty is a continuing guaranty and shall (i) remain in full force and effect until Payment in Full of the Guaranteed Obligations
(other than inchoate indemnity obligations) and shall not terminate for any reason prior to the respective Maturity Date of each Note
(other than Payment in Full of the Guaranteed Obligations) and (ii) be binding upon each Guarantor and its respective successors
and assigns. This Guaranty shall inure, together with all rights and remedies of the Collateral Agent hereunder, to the benefit of and
be enforceable by the Collateral Agent, the Buyers, and their respective successors, and permitted pledgees, transferees and assigns.
Without limiting the generality of the foregoing sentence, the Collateral Agent or any Buyer may pledge, assign or otherwise transfer
all or any portion of its rights and obligations under and subject to the terms of the Securities Purchase Agreement or any other Transaction
Document to any other Person in accordance with the terms thereof, and such other Person shall thereupon become vested with all the benefits
in respect thereof granted to the Collateral Agent or such Buyer (as applicable) herein or otherwise, in each case as provided in the
Securities Purchase Agreement or such Transaction Document. None of the rights or obligations of any Guarantor hereunder may be assigned
or otherwise transferred without the prior written consent of each Buyer.
(f) This
Guaranty and the other Transaction Documents reflect the entire understanding of the transaction contemplated hereby and shall not be
contradicted or qualified by any other agreement, oral or written, entered into before the date hereof.
(g) Section headings
herein are included for convenience of reference only and shall not constitute a part of this Guaranty for any other purpose.
Section 15. Currency
Indemnity.
If, for the purpose of obtaining
or enforcing judgment against Guarantor in any court in any jurisdiction, it becomes necessary to convert into any other currency (such
other currency being hereinafter in this Section 15 referred to as the “Judgment Currency”) an amount due
under this Guaranty in any currency (the “Obligation Currency”) other than the Judgment Currency, the conversion shall
be made at the rate of exchange prevailing on the Business Day immediately preceding (a) the date of actual payment of the amount
due, in the case of any proceeding in the courts of courts of the jurisdiction that will give effect to such conversion being made on
such date, or (b) the date on which the judgment is given, in the case of any proceeding in the courts of any other jurisdiction
(the applicable date as of which such conversion is made pursuant to this Section 15 being hereinafter in this Section 15
referred to as the “Judgment Conversion Date”).
If, in the case of any proceeding
in the court of any jurisdiction referred to in the preceding paragraph, there is a change in the rate of exchange prevailing between
the Judgment Conversion Date and the date of actual receipt of the amount due in immediately available funds, the Guarantors shall pay
such additional amount (if any, but in any event not a lesser amount) as may be necessary to ensure that the amount actually received
in the Judgment Currency, when converted at the rate of exchange prevailing on the date of payment, will produce the amount of the Obligation
Currency which could have been purchased with the amount of the Judgment Currency stipulated in the judgment or judicial order at the
rate of exchange prevailing on the Judgment Conversion Date. Any amount due from the Guarantors under this Section 15 shall
be due as a separate debt and shall not be affected by judgment being obtained for any other amounts due under or in respect of this Guaranty.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, each Guarantor
has caused this Guaranty to be executed by its respective duly authorized officer, as of the date first above written.
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SONICHASH LLC |
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SONIC AUSPICE
DC LLC |
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| ACCEPTED BY: |
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Exhibit 10.5
Execution Version
EQUITY PURCHASE AGREEMENT
dated as of
December 7, 2023
between
[ ]
and
BIT ORIGIN LTD.
EQUITY PURCHASE AGREEMENT
This Equity Purchase Agreement (this “Agreement”)
made as of the 7th day of December, 2023 by and between [ ], a [ ] (the “Seller”), and BIT ORIGIN LTD, an entity
formed in the Cayman Islands (the “Buyer”).
WITNESSETH:
WHEREAS, the Seller owns 100% of the membership interests
(the “Membership Interests”) of Sonic Auspice DC LLC, a Delaware limited liability company (the “Company”).
WHEREAS, the Buyer wishes to purchase from the Seller,
and the Seller wishes to sell to the Buyer, seventy-five percent (75%) of the Membership Interests (the “Interest”),
subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises
hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereby agree as follows:
1. Purchase
and Sale of the Interest.
1.1 Sale
of the Interest. At the Closing (as hereinafter defined), subject to and upon all other terms and conditions of this Agreement, the
Seller shall sell, transfer, convey, assign and deliver to the Buyer, and the Buyer shall purchase from the Seller, free and clear of
all liabilities, liens, mortgages, pledges, security interests, encumbrances, easements, reservations, claims and other restrictions of
any nature whatsoever (collectively, “Liens”), the Interest for the price specified in Section 1.2.
1.2 Purchase
Price. In consideration of the sale by the Seller to the Buyer of the Interest and the Seller’s performance of this Agreement,
at the Closing, the Buyer shall pay to the Seller, in immediately available funds, free and clear of and without any withholding, deduction,
set-off or counterclaim, seven hundred and fifty dollars (US $750) (the “Purchase Price”) in accordance with
the wire transfer instructions provided by the Seller on or prior to the Closing Date (as hereinafter defined).
1.3 The
Closing.
(a) The
closing of the sale of the Interest (the “Closing”) shall take place at such time, place, and date as may mutually
be agreed upon in writing by the parties (the “Closing Date”). The transfer of the Interest by the Seller to
the Buyer shall be deemed to occur as of the close of business on the Closing Date.
(b) At
the Closing, the Company, the Buyer and the Seller enter into the First Amended and Restated Limited Liability Company Agreement of the
Company in the form attached hereto as Exhibit A.
2. Representations
of the Seller. The Seller represents and warrants to the Buyer that the statements contained in this Section 2 are true and correct
as of the date hereof. For purposes of this Section 2, “Seller’s Knowledge”, “Knowledge
of Seller” and any similar phrases shall mean the actual or constructive knowledge of any director or officer of the Seller,
after due inquiry.
2.1 Organization
and Authority. The Seller is a limited liability company duly organized, validly existing and in good standing under the laws of the
State of Delaware. The Seller has full power to execute and deliver this Agreement and to consummate the transactions contemplated hereby.
2.2 Authorization.
The execution and delivery of this Agreement by the Seller, and the agreements provided for herein, and the consummation by the Seller
of all transactions contemplated hereby, have been duly authorized by all requisite limited liability company action. This Agreement and
all such other agreements and written obligations entered into and undertaken in connection with the transactions contemplated hereby
constitute the valid and legally binding obligations of the Seller (assuming due authorization, execution, and delivery by the Buyer),
enforceable against the Seller in accordance with their respective terms. The execution, delivery and performance of this Agreement and
the agreements provided for herein, and the consummation by the Seller of the transactions contemplated hereby, will not, with or without
the giving of notice or the passage of time or both: (a) violate the provisions of any law, rule or regulation applicable to
the Seller; (b) violate the provisions of the Seller’s organizational documents; or (c) violate any judgment, decree,
order or award of any court, administrative agency or other any federal, state, foreign or local governmental or regulatory authority
or agency (each, a “Governmental Agency”).
2.3 Ownership
of Interest. As of the date hereof, the Seller is the sole legal, beneficial, record, and equitable owner of the Interest, free and
clear of any Liens. To the Seller’s Knowledge, the Interest was authorized, offered, issued and sold to Seller in compliance with
all applicable federal and state securities and other laws. To Seller’s Knowledge, the Interest was not issued in violation of the
organizational documents of the Company or any other agreement, arrangement, or commitment to which Seller or the Company is a party and
is not subject to or in violation of any preemptive or similar rights of any Person (as hereinafter defined). Other than the organizational
documents of the Company, there are no voting trusts, proxies, or other agreements or understandings in effect with respect to the voting
or transfer of the Interest. At the Closing, the Seller shall effectively transfer to the Buyer good and marketable title to the Interest
free and clear of any Liens. “Person” means any individual, sole proprietorship, partnership, joint venture,
limited liability company, trust, estate, unincorporated association, corporation, institution, company or other entity of any kind.
2.4 Litigation.
The Seller is not a party to, nor to Seller’s Knowledge threatened with, any litigation, suit, action, investigation, proceeding,
or controversy or claim before any Governmental Agency (a) relating to or affecting the Interest; or (b) that challenges or
seeks to prevent, enjoin, or otherwise delay the transactions contemplated by this Agreement. To Seller’s Knowledge, no event has
occurred or circumstances exist that may give rise to, or serve as a basis for, any such litigation, suit, action, investigation, proceeding,
or controversy or claim.
2.5 Disclosure.
No representation or warranty by the Seller in this Agreement contains any untrue statement of a material fact or, to the Seller’s
Knowledge, omits any material fact necessary in order to make the statements contained herein not misleading. Except for the representations
and warranties expressly set forth in this Agreement neither the Seller nor any other Person has made or makes any other express or implied
representation or warranty, either written or oral, on behalf of Seller. Without limiting the generality of the foregoing, neither Seller
nor any other Person has made or makes any representation or warranty with respect to any projections, estimates or budgets of future
revenues, future results of operations, future cash flows or future financial condition (or any component of any of the foregoing) of
the Company.
2.6 Independent
Investigation. The Seller has conducted an independent investigation, review and analysis of the business, results of operations,
prospects, condition (financial or otherwise) or assets of the Company and has received, adequate access to the personnel, properties,
assets, premises, books and records and other documents and data of the Company for such purpose. The Seller acknowledges and agrees that
in making its decision to enter into this Agreement and to consummate the transactions contemplated hereby, the Seller has relied solely
upon its own investigation and the express representations and warranties set forth in this Agreement.
3. Representations
of the Buyer. The Buyer represents and warrants to the Seller that the statements contained in this Section 3 are true and correct
as of the date hereof. For purposes of this Section 3, "Buyer’s Knowledge", "Knowledge of
Buyer" and any similar phrases shall mean the actual or constructive knowledge of any director or officer of the Buyer, after
due inquiry.
3.1 Organization
and Authority. The Buyer is a limited liability company duly organized and validly existing under the laws of the Cayman Islands,
and has the requisite power and authority to own its properties and to carry on its business as now being conducted. The Buyer has full
power to execute and deliver this Agreement to consummate the transactions contemplated hereby.
3.2 Authorization.
The execution and delivery of this Agreement by the Buyer, and the agreements provided for herein, and the consummation by the Buyer of
all transactions contemplated hereby, have been duly authorized by all requisite limited liability company action. This Agreement and
all such other agreements and written obligations entered into and undertaken in connection with the transactions contemplated hereby
constitute the valid and legally binding obligations of the Buyer (assuming due authorization, execution, and delivery by the Seller),
enforceable against the Buyer in accordance with their respective terms. The execution, delivery and performance of this Agreement and
the agreements provided for herein, and the consummation by the Buyer of the transactions contemplated hereby, will not, with or without
the giving of notice or the passage of time or both: (a) violate the provisions of any law, rule or regulation applicable to
the Buyer; (b) violate the provisions of the Buyer’s organizational documents; or (c) violate any judgment, decree, order
or award of any court, arbitrator or Governmental Agency.
3.3 Regulatory
Approvals. All consents, approvals, authorizations and other requirements prescribed by any law, rule or regulation that must
be obtained or satisfied by the Buyer and that are necessary for the consummation of the transactions contemplated by this Agreement
have been obtained and satisfied.
3.4 Investment
Purpose. The Buyer is acquiring the Interest solely for its own account for investment purposes and not with a view to, or for offer
or sale in connection with, any distribution thereof. The Buyer acknowledges that the Interest is not registered under the Securities
Act of 1933, as amended, or any state securities laws, and that the Interest may not be transferred or sold except pursuant to the registration
provisions of the Securities Act of 1933, as amended, or pursuant to an applicable exemption therefrom and subject to state securities
laws and regulations, as applicable, and in accordance with the First Amended and Restated Limited Liability Company Agreement, as may
be amended from time to time.
3.5 Independent
Investigation. The Buyer has conducted an independent investigation, review and analysis of the business, results of operations, prospects,
condition (financial or otherwise) or assets of the Company and has received, adequate access to the personnel, properties, assets, premises,
books and records and other documents and data of the Company for such purpose. The Buyer acknowledges and agrees that in making its decision
to enter into this Agreement and to consummate the transactions contemplated hereby, the Buyer has relied solely upon its own investigation
and the express representations and warranties set forth in this Agreement.
3.6 Sufficiency
of Funds. The Buyer has sufficient cash on hand or other sources of immediately available funds to enable it to make payment of the
Purchase Price and consummate the transactions contemplated by this Agreement.
3.7 Litigation.
Neither the Buyer nor any affiliate of the Buyer is a party to, nor to Buyer’s Knowledge threatened with, any litigation, suit,
action, investigation, proceeding, or controversy or claim before any court or Governmental Agency that challenges or seeks to prevent,
enjoin or otherwise delay the transactions contemplated by this Agreement. To the Buyer’s Knowledge, no event has occurred or circumstances
exist that may give rise or serve as a basis for any such litigation, suit, action, investigation, proceeding, or controversy or claim.
3.8 Disclosure.
No representation or warranty by the Buyer in this Agreement contains any untrue statement of a material fact or, to Buyer’s Knowledge,
omits any material fact necessary in order to make the statements contained herein not misleading. Except for the representations and
warranties expressly set forth in this Agreement, neither the Buyer nor any other Person has made or makes any other express or implied
representation or warranty, either written or oral, on behalf of the Buyer.
4. Public
Statements; Confidentiality; Tax Matters.
4.1 Public
Statements. Neither party shall, and each party shall not permit any of its affiliates (including, in the case of the Buyer, the Company
and any related entities) or any of its or their respective members, principals, partners, directors, managers or similar officials, officers
or employees to, make any press release or public statement regarding this Agreement, any of the matters or transactions contemplated
hereby, or the relationship or involvement of the parties or any of their affiliates in connection herewith.
4.2 Confidentiality.
Each of the Seller and the Buyer shall, and shall each cause its and its affiliates’ respective members, principals, partners, directors,
managers and similar officials, officers and employees to, treat the provisions of this Agreement and the subject matter hereof and transactions
contemplated hereby as confidential and not disclose any of the foregoing except as required by applicable law or the policies of a national
securities exchange. Any such disclosure shall be in accordance with the applicable Person’s standard policies and procedures, as
provided by such Person to the other party, but absent the delivery of such standard policies and procedures such disclosure shall in
all respects be consistent with at least a reasonable degree of care, with respect to confidential information. The Buyer shall cause
the related entities and their respective members, principals, partners, owners, directors, managers and similar officials, officers and
employees to comply with the foregoing in this Section 4.2.
5. Amendments;
Waiver. This Agreement may be amended with, but only with, the written consent of both of the parties hereto. Any provision of this
Agreement may be waived if, but only if, such waiver is in writing and signed by the party hereto against whom the waiver is to be effective.
No failure or delay by any party hereto in exercising or enforcing any right, power or privilege hereunder shall operate as a waiver thereof
nor shall any single or partial exercise or enforcement thereof preclude any other or further exercise or enforcement thereof or the exercise
or enforcement of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of
any rights or remedies provided by applicable law.
6. Notices.
All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to
have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent
by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail of a PDF document (with
confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal
business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested,
postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on each parties’ Signature
Pages (or at such other address for a party as shall be specified in a notice given in accordance with this Section 6):
7. Miscellaneous.
7.1 Entire
Agreement. This Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter hereof, and
supersedes any prior agreement or understanding between the parties hereto with respect to the subject matter hereof.
7.2 Governing
Law. This Agreement shall be construed in accordance with and governed by the internal laws of the State of Delaware, without regard
to any provision of law that would require the application of the laws of any other jurisdiction.
7.3 Binding
Effect. Except as otherwise provided herein, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto
and their respective legal representatives, heirs, successors and permitted assigns.
7.4 Counterparts.
This Agreement may be executed either directly or by an attorney-in-fact, in any number of counterparts of the signature pages, each of
which may be distributed electronically and shall be considered an original and all of which together shall constitute one instrument.
7.5 Severability.
Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the remaining portions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
7.6 Interpretation.
The words “hereof”, “herein” and “hereunder” and words of like import used in this Agreement shall
refer to this Agreement as a whole and not to any particular provision of this Agreement. The headings and captions herein are included
for convenience of reference only and shall be ignored in the construction or interpretation hereof. References to Sections are to Sections
of this Agreement unless otherwise specified. Whenever the words “include”, “includes” or “including”
are used in this Agreement, they shall be deemed to be followed by the words “without limitation”, whether or not they are
in fact followed by those words or words of like import. “Writing”, “written” and comparable terms refer to printing,
typing and other means of reproducing words (including electronic media) in a visible form.
7.7 Gender
and Number. Whenever required by the context hereof, all pronouns and any variations thereof shall be deemed to refer to the masculine,
feminine and neuter, singular and plural.
7.8 No
Third Party Beneficiaries. Nothing in this Agreement is intended to or shall create any legal or equitable rights, benefit or remedy
of any nature whatsoever under or by reason of this Agreement for any Person other than a Person that is or becomes a signatory hereto.
7.9 No
Assignment. Neither party hereto may assign, convey or otherwise transfer this Agreement or any of its rights, duties or obligations
hereunder to any other Person without the prior written approval of the other party hereto. Any purported assignment, conveyance or transfer
without such approval shall be null and void ab initio.
7.10 Consent;
Approval. Except as otherwise set forth in this Agreement, in the event that any consent, approval, agreement or other authorization
of any Person is required hereunder, such consent, approval, agreement or other authorization shall be given or withheld in the sole discretion
of such Person, and shall only be effective if expressed in a writing signed by a duly authorized representative of such Person. In no
event shall any such consent, approval, agreement or other authorization be implied or deemed given in the absence of such a writing.
7.11 Brokers.
Each party hereto represents and warrants that it has not engaged any broker or finder or incurred any liability for brokerage fees, commissions
or finder’s fees in connection with the transactions contemplated by this Agreement. Each party hereto shall indemnify and hold
harmless the other party hereto against any claims or liabilities asserted against such other party by any Person acting or claiming to
act as a broker or finder on behalf of such indemnifying party.
7.12 Expenses.
Except as otherwise expressly provided herein, the Buyer and the Seller shall each pay its own expenses in connection with this Agreement
and the transactions contemplated hereby.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, this Agreement has been duly
executed by the parties hereto as of and on the date first above written.
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BIT ORIGIN LTD.
27F, Samsung Hub
3 Church Street, Singapore
Telephone: (347) 556-4747
Attention: Chief Executive Officer
Email: ir@bitorigin.io |
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[ ] |
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[ ] |
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Attention: [ ] |
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E-Mail: [ ] |
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[SIGNATURE PAGE TO EQUITY PURCHASE AGREEMENT]
EXHIBIT A
FIRST AMENDED AND RESTATED LIMITED LIABILITY
AGREEMENT
Exhibit 10.6
Execution Version
SECOND AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
of
SONIC AUSPICE DC LLC
The
limited liability company units represented by this limited liability company agreement have not been registered with the securities
and exchange commission under the securities act of 1933, as amended, or under the securities acts or laws of any state in reliance upon
exemptions under those acts. The sale or other disposition of such units is restricted as stated in this limited liability company agreement,
and in any event is prohibited unless the Company receives an opinion of counsel satisfactory to it and its counsel that such sale or
other disposition can be made without registration under the securities act of 1933, as amended, and any applicable state securities
acts and laws. by acquiring the units represented by this limited liability company agreement, each member represents that it will not
sell or otherwise dispose of its units without compliance with the provisions of this limited liability company agreement and registration
or other compliance with the aforesaid acts and the rules and regulations issued thereunder.
Second
Amended and Restated Limited Liability Company Agreement
Of
SONIC
AUSPICE DC LLC
A Delaware
Limited Liability Company
This Second Amended and Restated Limited Liability
Company Agreement (the “Agreement”) of Sonic Auspice DC LLC (the “Company”) is made as of December 8,
2023 (the “Effective Date”) by and among the Company and the Members whose names and addresses are set forth on the
signature pages hereto.
RECITALS
WHEREAS, the Company was formed under the laws
of the State of Delaware by the filing of a Certificate of Formation with the Secretary of State of the State of Delaware (the “Secretary
of State”) on November 30, 2023 (the “Certificate of Formation”);
WHEREAS, the Company is currently governed by
that certain First Amended and Restated Limited Liability Company Agreement of the Company dated as of December 7, 2023 by and among
the Company, [ ] (the “[ ] Member”) and Bit Origin Ltd. (the “BTOG Member”) (such agreement, the
“Prior Operating Agreement”).
WHEREAS, the Company, the Manager, and the Members
signatory hereto now desire to amend and restate the Prior Operating Agreement of the Company and continue the Company as a Delaware
limited liability company in accordance with the terms of this Agreement.
WHEREAS, on the Effective Date, the [ ] Member
entered into certain transactions with the BTOG Member pursuant to which the [ ] Member agreed to fund a $6,740,000 senior secured convertible
term loan to the BTOG Member (the “Tranche A Loan”);
WHEREAS, the Company and its Members wish to enter
into this Agreement setting forth the terms and conditions governing the operation and management of the Company.
NOW, THEREFORE, in consideration of the mutual
covenants and agreements of the parties hereto, and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, do hereby agree as follows:
ARTICLE I
Definitions
Section 1.01 Definitions.
Capitalized terms used herein and not otherwise defined shall have the meanings set forth in
this Section 1.01:
“Adjusted Capital Account Deficit”
means, with respect to any Member, the deficit balance, if any, in such Member’s Capital Account as of the end of the relevant Fiscal
Year, after giving effect to the following adjustments:
(a) crediting
to such Capital Account any amount that such Member is obligated to restore or is deemed to be obligated to restore pursuant to Treasury
Regulations Sections 1.704-1(b)(2)(ii)(c), 1.704-2(g)(1) and 1.704-2(i); and
(b) debiting
to such Capital Account the items described in Treasury Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6).
“Adjusted Taxable Income” of
a Member for a Fiscal Year (or portion thereof) with respect to the Units held by such Member means the federal taxable income allocated
by the Company to the Member with respect to such Units (as adjusted by any final determination in connection with any tax audit or other
proceeding) for such Fiscal Year (or portion thereof); provided, that such taxable income shall be computed (i) minus any
excess taxable loss or excess taxable credits of the Company for any prior period allocable to such Member with respect to such Units
that were not previously taken into account for purposes of determining such Member’s Adjusted Taxable Income in a prior Fiscal Year
to the extent such loss or credit would be available under the Code to offset income of the Member (or, as appropriate, the direct or
indirect owners of the Member) determined as if the income, loss, and credits from the Company were the only income, loss, and credits
of the Member (or, as appropriate, the direct or indirect members of the Member) in such Fiscal Year and all prior Fiscal Years, and
(ii) taking into account any special basis adjustment with respect to such Member resulting from an election by the Company under
Code Section 754.
“Affiliate” means, with respect
to any Person, any other Person who, directly or indirectly (including through one or more intermediaries), controls, is controlled by,
or is under common control with, such Person. For purposes of this definition, “control,” when used with respect to any specified
Person, shall mean the power, direct or indirect, to direct or cause the direction of the management and policies of such Person, whether
through ownership of voting securities or partnership or other ownership interests, by contract or otherwise; and the terms “controlling”
and “controlled” shall have correlative meanings.
“Agreement” means this Second
Amended and Restated Limited Liability Company Agreement, as executed and as it may be amended, modified, supplemented or restated from
time to time, as provided herein.
“Applicable Law” means all applicable
provisions of (a) constitutions, treaties, statutes, laws (including the common law), rules, regulations, decrees, ordinances, codes,
proclamations, declarations or orders of any Governmental Authority; (b) any consents or approvals of any Governmental Authority;
and (c) any orders, decisions, advisory or interpretative opinions, injunctions, judgments, awards, decrees of, or agreements with,
any Governmental Authority.
“[ ] Member” has the meaning
set forth in the Recitals.
“BBA” means the Bipartisan Budget
Act of 2015.
“Book Depreciation” means, with
respect to any Company asset for each Fiscal Year, the Company’s depreciation, amortization, or other cost recovery deductions determined
for federal income tax purposes, except that if the Book Value of an asset differs from its adjusted tax basis at the beginning of such
Fiscal Year, Book Depreciation shall be an amount which bears the same ratio to such beginning Book Value as the federal income tax depreciation,
amortization, or other cost recovery deduction for such Fiscal Year bears to such beginning adjusted tax basis; provided, that
if the adjusted basis for federal income tax purposes of an asset at the beginning of such Fiscal Year is zero and the Book Value of
the asset is positive, Book Depreciation shall be determined with reference to such beginning Book Value using any permitted method selected
by the Manager in accordance with Treasury Regulations Section 1.704-1(b)(2)(iv)(g)(3).
“Book Value” means, with respect
to any Company asset, the adjusted basis of such asset for federal income tax purposes, except as follows:
(a) the
initial Book Value of any Company asset contributed by a Member to the Company shall be the gross Fair Market Value of such Company asset
as of the date of such contribution;
(b) immediately
prior to the Distribution by the Company of any Company asset to a Member, the Book Value of such asset shall be adjusted to its gross
Fair Market Value as of the date of such Distribution;
(c) the
Book Value of all Company assets may, in the sole discretion of the Manager, be adjusted to equal their respective gross Fair Market
Values, as determined by the Manager, as of the following times:
(i) the
acquisition of any additional Units in the Company by a new or existing Member in consideration for more than a de minimis Capital
Contribution;
(ii) the
Distribution by the Company to a Member of more than a de minimis amount of property (other than cash) as consideration for all
or a part of such Member’s Units; and
(iii) the
liquidation of the Company within the meaning of Treasury Regulations Section 1.704-1(b)(2)(ii)(g);
(d) the
Book Value of each Company asset shall be increased or decreased, as the case may be, to reflect any adjustments to the adjusted tax
basis of such Company asset pursuant to Code Section 734(b) or Code Section 743(b), but only to the extent that such adjustments
are taken into account in determining Capital Account balances pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(m); provided,
that Book Values shall not be adjusted pursuant to this paragraph (d) to the extent that an adjustment pursuant to paragraph (c) above
is made in conjunction with a transaction that would otherwise result in an adjustment pursuant to this paragraph (d); and
(e) if
the Book Value of a Company asset has been determined pursuant to paragraph (a) or adjusted pursuant to paragraphs (c) or (d) above,
such Book Value shall thereafter be adjusted to reflect the Book Depreciation taken into account with respect to such Company asset for
purposes of computing Net Income and Net Losses.
“BTOG Member” has the meaning
set forth in the Recitals.
“Business Day” means a day other
than a Saturday, Sunday or other day on which commercial banks in the City of New York are authorized or required to close.
“Call Closing” has the meaning
set forth in Section 9.05.
“Call Interest” has the meaning
set forth in Section 9.05(a).
“Call Right” has the meaning
set forth in Section 9.05(a).
“Call Seller” has the meaning
set forth in Section 9.05(a).
“Capital Account” has the meaning
set forth in Section 3.03.
“Capital Contribution” means,
for any Member, the total amount of cash and cash equivalents and the Book Value of any property contributed to the Company by such Member.
“Certificate of Formation” has
the meaning set forth in the Recitals.
“Code” means the Internal Revenue
Code of 1986, as amended.
“Common Capital Value” means,
for any holder of Common Units at any time, the sum of the Capital Contributions attributable in respect of the acquisition of such holder’s
Common Units as set forth on Schedule A.
“Common Member” means a Member
that holds Common Units.
“Common Units” means the Units
having the privileges, preference, duties, liabilities, obligations, and rights specified with respect to “Common Units” in
this Agreement.
“Company” has the meaning set
forth in the Preamble.
“Company Interest Rate” has the
meaning set forth in Section 7.04(c).
“Company Minimum Gain” means
“partnership minimum gain” as defined in Treasury Regulations Section 1.704-2(b)(2), substituting the term “Company”
for the term “partnership” as the context requires.
“Covered Person” has the meaning
set forth in Section 10.01(c).
“Data Center” has the meaning
set forth in Section 2.04(a).
“Delaware Act” means the Delaware
Limited Liability Company Act, Title 6, Chapter 18, §§ 18-101, et seq.
“Distribution” means a distribution
made by the Company to a Member, whether in cash, property, or securities of the Company and whether by liquidating distribution or otherwise;
provided, that none of the following shall be a Distribution: (a) any redemption or repurchase by the Company or any Member
of any Units; (b) any recapitalization or exchange of securities of the Company; or (c) any subdivision (by a split of Units
or otherwise) or any combination (by a reverse split of Units or otherwise) of any outstanding Units; or (d) any fees or remuneration
paid to any Member in such Member’s capacity as a service provider for, or employee of, the Company. “Distribute” when
used as a verb shall have a correlative meaning.
“Drag-along Member” has the meaning
set forth in Section 9.04(a).
“Drag-along Notice” has the meaning
set forth in Section 9.04(c).
“Drag-along Sale” has the meaning
set forth in Section 9.04(a).
“Dragging Member” has the meaning
set forth in Section 9.04(a).
“Effective Date” has the meaning
set forth in the Preamble.
“Electronic Transmission” means
any form of communication not directly involving the physical transmission of paper, including the use of, or participation in, one or
more electronic networks or databases (including one or more distributed electronic networks or databases), that creates a record that
may be retained, retrieved and reviewed by a recipient thereof and that may be directly reproduced in paper form by such a recipient
through an automated process.
“Estimated Tax Amount” of a Member
for a Fiscal Year means the Member’s Tax Amount for such Fiscal Year as estimated in good faith from time to time by the Manager. In
making such estimate, the Manager shall take into account amounts shown on Internal Revenue Service Form 1065 filed by the Company
and similar state or local forms filed by the Company for the preceding taxable year and such other adjustments as the Manager reasonably
determines are necessary or appropriate to reflect the estimated operations of the Company for the Fiscal Year.
“Excess Amount” has the meaning
set forth in Section 7.03(c).
“Fair Market Value” of any asset
as of any date means the purchase price that a willing buyer having all relevant knowledge would pay a willing seller for such asset
in an arm’s length transaction, as determined in good faith by the Manager based on such factors as the Manager, in the exercise of its
reasonable business judgment, considers relevant.
“Family Member” has the meaning
set forth in Section 9.02(b).
“Fiscal Year” means the calendar
year, unless the Company is required to have a taxable year other than the calendar year, in which case Fiscal Year shall be the period
that conforms to its taxable year.
“GAAP” means United States generally
accepted accounting principles in effect from time to time.
“Governmental Authority” means
any federal, state, local or foreign government or political subdivision thereof, or any agency or instrumentality of such government
or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority
(to the extent that the rules, regulations or orders of such organization or authority have the force of law), or any arbitrator, court
or tribunal of competent jurisdiction.
“Independent Third Party” means,
with respect to any Person, any Person who is not an Affiliate of such Person.
“Joinder Agreement” means the
joinder agreement in form and substance attached hereto as Exhibit A.
“Lien” means any mortgage, pledge,
security interest, option, right of first offer, encumbrance or other restriction or limitation of any nature whatsoever.
“Liquidator” has the meaning
set forth in Section 12.03(a).
“Losses” has the meaning set
forth in Section 10.01(a).
“Manager” means (a) each
Person identified as of the date hereof as a Manager in Section 8.02 and (b) each Person who is hereafter elected as a Manager
in accordance with Section 8.02. The Manager need not be a Member of the Company, a resident of the State of Delaware or an individual.
“Managers Schedule” has the meaning
set forth in Section 8.02(c).
“Marital Relationship” means
a civil union, domestic partnership, marriage, or any other similar relationship that is legally recognized in any jurisdiction.
“Member” means (a) each
Member signatory hereto; and (b) each Person who is hereafter admitted as a Member in accordance with the terms of this Agreement
and the Delaware Act, in each case so long as such Person is shown on the Company’s books and records as the owner of one or more Units.
The Members shall constitute the “members” (as that term is defined in the Delaware Act) of the Company.
“Member Nonrecourse Debt” means
“partner nonrecourse debt” as defined in Treasury Regulations Section 1.704-2(b)(4), substituting the term “Company”
for the term “partnership” and the term “Member” for the term “partner” as the context requires.
“Member Nonrecourse Debt Minimum Gain”
means an amount, with respect to each Member Nonrecourse Debt, equal to the Company Minimum Gain that would result if the Member Nonrecourse
Debt were treated as a Nonrecourse Liability, determined in accordance with Treasury Regulations Section 1.704-2(i)(3).
“Member Nonrecourse Deduction”
means “partner nonrecourse deduction” as defined in Treasury Regulations Section 1.704-2(i), substituting the term “Member”
for the term “partner” as the context requires.
“Members Schedule” has the meaning
set forth in Section 4.01.
“Membership Interest” means an
interest in the Company owned by a Member, including such Member’s right (based on the type, class, or series of Unit or Units held by
such Member), as applicable, to (a) such Member’s distributive share of Net Income, Net Losses, and other items of income, gain,
loss, and deduction of the Company; (b) such Member’s distributive share of the assets of the Company; (c) vote on, consent
to, or otherwise participate in any decision of the Members as provided in this Agreement; and (d) any and all other benefits to
which such Member may be entitled as provided in this Agreement or the Delaware Act.
“Misallocated Item” has the meaning
set forth in Section 6.05.
“Net Income” and “Net
Loss” mean, for each Fiscal Year or other period specified in this Agreement, an amount equal to the Company’s taxable income
or taxable loss, or particular items thereof, determined in accordance with Code Section 703(a) (where, for this purpose, all
items of income, gain, loss or deduction required to be stated separately pursuant to Code Section 703(a)(1) shall be included
in taxable income or taxable loss), but with the following adjustments:
(a) any
income realized by the Company that is exempt from federal income taxation, as described in Code Section 705(a)(1)(B), shall be
added to such taxable income or taxable loss, notwithstanding that such income is not includable in gross income;
(b) any
expenditures of the Company described in Code Section 705(a)(2)(B), including any items treated under Treasury Regulations Section 1.704-1(b)(2)(iv)(I) as
items described in Code Section 705(a)(2)(B), shall be subtracted from such taxable income or taxable loss, notwithstanding that
such expenditures are not deductible for federal income tax purposes;
(c) any
gain or loss resulting from any disposition of Company property with respect to which gain or loss is recognized for federal income tax
purposes shall be computed by reference to the Book Value of the property so disposed, notwithstanding that the adjusted tax basis of
such property differs from its Book Value;
(d) any
items of depreciation, amortization and other cost recovery deductions with respect to Company property having a Book Value that differs
from its adjusted tax basis shall be computed by reference to the property’s Book Value (as adjusted for Book Depreciation) in accordance
with Treasury Regulations Section 1.704-1(b)(2)(iv)(g);
(e) if
the Book Value of any Company property is adjusted as provided in the definition of Book Value, then the amount of such adjustment shall
be treated as an item of gain or loss and included in the computation of such taxable income or taxable loss; and
(f) to
the extent an adjustment to the adjusted tax basis of any Company property pursuant to Code Sections 732(d), 734(b) or 743(b) is
required, pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(m), to be taken into account in determining Capital Accounts,
the amount of such adjustment to the Capital Accounts shall be treated as an item of gain (if the adjustment increases the basis of the
asset) or loss (if the adjustment decreases such basis).
“Offered Interests” has the meaning
set forth in Section 9.03(a).
“Offering Member” has the meaning
set forth in Section 9.03(a).
“Offering Member Notice” has
the meaning set forth in Section 9.03(b).
“Officers” has the meaning set
forth in Section 8.03(c).
“Permitted Transfer” means a
Transfer of Preferred Units or Common Units carried out pursuant to Section 9.02. “Permitted Transferee” means
a recipient of a Permitted Transfer.
“Person” means an individual,
corporation, partnership, joint venture, limited liability company, Governmental Authority, unincorporated organization, trust, association
or other entity.
“Per Unit Price” means, at any
time, the quotient of (x) the amount of the Capital Contribution set forth opposite a Member’s name on the Members Schedule
divided by (y) the total number of Units owned by such Member as set forth on the Members Schedule.
“Preferred Units” means the Units
having the privileges, preference, duties, liabilities, obligations, and rights specified with respect to “Preferred Units”
in this Agreement.
“Purchasing Member” has the meaning
set forth in Section 9.03(c).
“Quarterly Estimated Tax Amount” of a Member for any calendar quarter of a Fiscal Year means the excess, if any of (a) the product of (a) a quarter (1/4) in
the case of the first calendar quarter of the Fiscal Year, half (1/2) in the case of the second calendar quarter of the Fiscal Year,
three-quarters (3/4) in the case of the third calendar quarter of the Fiscal Year, and one (1) in the case of the fourth calendar
quarter of the Fiscal Year and (ii) the Member’s Estimated Tax Amount for such Fiscal Year over (b) all Distributions previously
made during such Fiscal Year to such Member.
“Regulatory Allocations” has
the meaning set forth in Section 6.02(d).
“Related Party Agreement” means
any agreement, arrangement or understanding between the Company and any Member or any Affiliate of a Member or any Officer or employee
of the Company, as such agreement may be amended, modified, supplemented or restated in accordance with the terms of this Agreement.
“Representative” means, with
respect to any Person, any and all directors, officers, employees, consultants, financial advisors, counsel, accountants and other agents
of such Person.
“Revised Partnership Audit Rules”
has the meaning set forth in Section 11.04(c).
“ROFR Notice Period” has the
meaning set forth in Section 9.03(c).
“ROFR Offer Notice” has the meaning
set forth in Section 9.03(c).
“ROFR Rightholder” has the meaning
set forth in Section 9.03(a).
“Secretary of State” has the
meaning set forth in the Recitals.
“Securities Act” means the Securities
Act of 1933.
“Shortfall Amount” has the meaning
set forth in Section 7.03(b).
“Spousal Consent” has the meaning
set forth in Section 13.14.
“Spouse” means a spouse, a party
to a civil union, a domestic partner, a same-sex spouse or partner, or any individual in a Marital Relationship with a Member.
“Subsidiary” means, with respect
to any Person, any other Person of which a majority of the outstanding shares or other equity interests having the power to vote for
directors or comparable managers are owned, directly or indirectly, by the first Person.
“Tax Advance” has the meaning
set forth in Section 7.03(a).
“Tax Amount” of a Member for
a Fiscal Year means the product of (a) the Tax Rate for such Fiscal Year and (b) the Adjusted Taxable Income of the Member
for such Fiscal Year with respect to its Membership Interest.
“Tax Matters Representative”
has the meaning set forth in Section 11.04(a).
“Tax Rate” of a Member, for any
period, means the highest marginal combined federal, state and local tax rate applicable to an individual residing in New York, New York,
taking into account (a) the character (for example, long-term or short-term capital gain, ordinary or exempt) of the applicable
income and (b) if applicable, the deduction under IRC Section 199A.
“Taxing Authority” has the meaning
set forth in Section 7.04(b).
“Tranche A Loan” has the meaning
set forth in the Recitals.
“Transfer” means to, directly
or indirectly, sell, transfer, assign, pledge, encumber, hypothecate or similarly dispose of, either voluntarily or involuntarily, by
operation of law or otherwise, or to enter into any contract, option or other arrangement or understanding with respect to the sale,
transfer, assignment, pledge, encumbrance, hypothecation or similar disposition of, any Units owned by a Person or any interest (including
a beneficial interest) in any Units owned by a Person. “Transfer” when used as a noun shall have a correlative meaning.
“Transferor” and “Transferee” mean a Person who makes or receives a Transfer, respectively.
“Treasury Regulations” means
the final or temporary regulations issued by the United States Department of Treasury pursuant to its authority under the Code, and any
successor regulations.
“Unallocated Item” has the meaning
set forth in Section 6.05.
“Unit” means a unit representing
a fractional part of the Membership Interests of the Members and shall include all types, classes, and series of Units, including the
Preferred Units and the Common Units; provided, that any type, class, or series of Unit shall have the privileges, preference,
duties, liabilities, obligations, and rights set forth in this Agreement with respect to such type, class, or series of Unit and the
Membership Interests represented by such type, class, or series of Unit shall be determined in accordance with such privileges, preference,
duties, liabilities, obligations, and rights.
“Withholding Advances” has the
meaning set forth in Section 7.04(b).
Section 1.02 Interpretation.
For purposes of this Agreement: (a) the words “include,” “includes”
and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or”
is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder”
refer to this Agreement as a whole. The definitions given for any defined terms in this Agreement shall apply equally to both the singular
and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine
and gender-neutral forms. Unless the context otherwise requires, references herein: (x) to Articles, Sections, and Exhibits mean
the Articles and Sections of, and Exhibits attached to, this Agreement; (y) to an agreement, instrument or other document means
such agreement, instrument or other document as amended, supplemented or modified from time to time to the extent permitted by the provisions
thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and
any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction
or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Exhibits and Schedules referred
to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
ARTICLE II
Organization
Section 2.01 Name.
The name of the Company is “Sonic Auspice DC LLC”.
Section 2.02 Principal
Office. The principal office of the Company is located at the principal offices of the Manager,
or such other place as may from time to time be determined by the Manager. The Manager shall give prompt notice of any such change to
each of the Members.
Section 2.03 Registered
Office; Registered Agent. The registered office of the Company and the registered agent
for service of process on the Company in the State of Delaware shall be the office and Person named in the Certificate of Formation or
such other office (which need not be a place of business of the Company) or Person as the Manager may designate from time to time in
the manner provided by the Delaware Act and Applicable Law.
Section 2.04 Purpose;
Powers.
(a) The
purposes of the Company are to build, own and operate a 25 megawatt data center located at 9010 Venture Dr, Cheyenne, WY 82007 (the “Data
Center”), for use by the Manager and its tenants in their cryptomining activities and to engage in any and all activities the
Manager considers to be necessary or appropriate in connection with the purpose set forth above or incidental thereto.
(b) The
Company shall have all the powers necessary or convenient to carry out the purposes for which it is formed, including the powers granted
by the Delaware Act.
Section 2.05 Term.
The term of the Company commenced on the date the Certificate of Formation was filed with the
Secretary of State and shall continue in existence perpetually until the Company is dissolved in accordance with the provisions of this
Agreement.
ARTICLE III
Capital Contributions; Capital Accounts
Section 3.01 Initial
Capital Contributions. Contemporaneously with the execution of this Agreement, each Member signatory
hereto owning Preferred Units or Common Units has made an initial Capital Contribution giving rise to such Member’s initial Capital
Account and is deemed to own the number and class of Units, in each case in the amounts set forth opposite such Member’s name on the
Member Schedule. The Manager shall maintain and update the Members Schedule upon the Transfer of any Units to any new or existing Member
in accordance with this Agreement.
Section 3.02 Additional
Capital Contributions. No Member shall be required to make any additional Capital Contributions
or lend any funds to the Company.
Section 3.03 Maintenance
of Capital Accounts. The Company shall establish and maintain for each Member a separate capital
account (a “Capital Account”) on its books and records in accordance with this Section 3.03. Each Capital Account
shall be established and maintained in accordance with the following provisions:
(a) Each
Member’s Capital Account shall be increased by the amount of:
(i) such
Member’s Capital Contributions, including such Member’s initial Capital Contribution and any additional Capital Contributions;
(ii) any
Net Income or other item of income or gain allocated to such Member pursuant to ARTICLE VI; and
(iii) any
liabilities of the Company that are assumed by such Member or secured by any property Distributed to such Member.
(b) Each
Member’s Capital Account shall be decreased by:
(i) the
cash amount or Book Value of any property Distributed to such Member pursuant to ARTICLE VII and Section 12.03(c);
(ii) the
amount of any Net Loss or other item of loss or deduction allocated to such Member pursuant to ARTICLE VI; and
(iii) the
amount of any liabilities of such Member assumed by the Company or that are secured by any property contributed by such Member to the
Company.
Section 3.04 Succession
Upon Transfer. In the event that any Units are Transferred in accordance with the terms of this
Agreement, the Transferee shall succeed to the Capital Account of the Transferor to the extent it relates to the Transferred Units and,
subject to Section 6.03(a), shall receive allocations and Distributions pursuant to ARTICLE VI, ARTICLE VII and ARTICLE XII
in respect of such Units.
Section 3.05 Negative
Capital Accounts. In the event that any Member shall have a deficit balance in its Capital Account,
such Member shall have no obligation, during the term of the Company or upon dissolution or liquidation of the Company, to restore such
negative balance or make any Capital Contributions to the Company by reason thereof, except as may be required by Applicable Law or in
respect of any negative balance resulting from a withdrawal of capital or dissolution in contravention of this Agreement.
Section 3.06 No
Withdrawals from Capital Accounts. No Member shall be entitled to withdraw any part of its Capital
Account or to receive any Distribution from the Company, except as otherwise provided in this Agreement. No Member shall receive any
interest, salary, management or service fees or drawing with respect to such Member’s Capital Contributions or its Capital Account,
except as otherwise provided in this Agreement. Except as otherwise provided in this Agreement, the Capital Accounts are maintained for
the sole purpose of allocating items of income, gain, loss and deduction among the Members and shall have no effect on the amount of
any Distributions to any Members, in liquidation or otherwise.
Section 3.07 Loans
From Members. Loans by any Member to the Company shall not be considered Capital Contributions
and shall not affect the maintenance of such Member’s Capital Account, other than to the extent provided in Section 3.03(a)(iii),
if applicable.
Section 3.08 Modifications.
The foregoing provisions and the other provisions of this Agreement relating to the maintenance
of Capital Accounts are intended to comply with Treasury Regulations Section 1.704-1(b) and shall be interpreted and applied
in a manner consistent with such Treasury Regulations. If the Manager determines that it is prudent to modify the manner in which the
Capital Accounts, or any increases or decreases to the Capital Accounts, are computed in order to comply with such Treasury Regulations,
the Manager may authorize such modifications without the consent any Member.
ARTICLE IV
Units
Section 4.01 Units
Generally. The Membership Interests of the Members shall be represented by issued and outstanding
Units, which may be divided into one or more types, classes, or series. Each type, class, or series of Units shall have the privileges,
preference, duties, liabilities, obligations, and rights, including voting rights, if any, set forth in this Agreement with respect to
such type, class, or series. The Manager shall maintain a schedule of all Members, their respective mailing addresses, and the amount
and type, class, or series of Units held by them (the “Members Schedule”), and shall update the Members Schedule upon
the issuance or Transfer of any Units in accordance with this Agreement. A copy of the Members Schedule as of the execution of this Agreement
is attached hereto as Schedule A.
Section 4.02 Authorization
and Issuance of Preferred Units. The Company is hereby authorized to issue up to 85 Units designated
as Preferred Units. As of the date hereof, 75 Preferred Units are issued and outstanding to the Preferred Members in the amounts set
forth on the Members Schedule opposite each such Preferred Member’s name.
Section 4.03 Authorization
and Issuance of Common Units. The Company is hereby authorized to issue up to 25 Units designated
as Common Units. As of the date hereof, 25 Common Units are issued and outstanding to the Common Members in the amounts set forth on
the Members Schedule opposite each such Common Member’s name.
Section 4.04 Other
Issuances. The Company is not authorized to authorize and issue or sell to any Person, any of
the following (collectively, “New Interests”): (a) any new type, class, or series of Units not otherwise authorized
in this Agreement, including Units designated as classes or series of the Preferred Units or Common Units with different rights, privileges,
or preferences; and (b) Unit Equivalents.
Section 4.05 Certification
of Units.
(a) The
Manager may, but shall not be required to, issue certificates to the Members representing the Units held by such Member.
(b) If
the Manager shall issue certificates representing Units in accordance with Section 4.05(a), then in addition to any other legend
required by Applicable Law, all certificates representing issued and outstanding Membership Interests shall bear a legend substantially
in the following form:
THE UNITS REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
A SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT AMONG THE COMPANY AND ITS MEMBERS, A COPY OF WHICH IS ON FILE AT THE
PRINCIPAL EXECUTIVE OFFICE OF THE COMPANY. NO TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF THE UNITS REPRESENTED
BY THIS CERTIFICATE MAY BE MADE EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SUCH SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY
AGREEMENT.
THE UNITS REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES ACTS OR
LAWS OF ANY STATE IN RELIANCE UPON EXEMPTIONS UNDER THOSE ACTS. THE SALE OR OTHER DISPOSITION OF SUCH UNITS IS RESTRICTED AS STATED IN
THE SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT, AND IN ANY EVENT IS PROHIBITED UNLESS THE COMPANY RECEIVES AN OPINION
OF COUNSEL SATISFACTORY TO IT AND ITS COUNSEL THAT SUCH SALE OR OTHER DISPOSITION CAN BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, AND ANY APPLICABLE STATE SECURITIES ACTS AND LAWS.
ARTICLE V
Members
Section 5.01 Admission
of New Members.
(a) New
Members may be admitted from time to time in connection with a Transfer of Units, subject to compliance with the provisions of ARTICLE IX,
and following compliance with the provisions of Section 5.01(b).
(b) In
order for any Person not already a Member of the Company to be admitted as a Member, such Person shall have executed and delivered to
the Company a written undertaking substantially in the form of the Joinder Agreement and, if such Person is an individual who has a Spouse,
an executed written undertaking substantially in the form of the Spousal Consent. Upon the amendment of the Members Schedule by the Manager
and the satisfaction of any other applicable conditions, such Person shall be admitted as a Member and deemed listed as such on the books
and records of the Company. The Manager shall also adjust the Capital Accounts of the Members as necessary in accordance with Section 3.03.
Section 5.02 Representations
and Warranties of Members. By execution and delivery of this Agreement or a Joinder Agreement,
as applicable, each of the Members, whether admitted as of the date hereof or pursuant to ARTICLE IX, represents and warrants to
the Company and acknowledges that:
(a) The
Units have not been registered under the Securities Act or the securities laws of any other jurisdiction, are issued in reliance upon
federal and state exemptions for transactions not involving a public offering, and cannot be disposed of unless (i) they are subsequently
registered or exempted from registration under the Securities Act and (ii) the provisions of this Agreement have been complied with;
(b) Such
Member (i) is an “accredited investor” within the meaning of Rule 501 promulgated under the Securities Act and (ii) agrees
to furnish any additional information requested by the Company to assure compliance with applicable U.S. federal and state securities
laws in connection with the purchase and sale of the Units;
(c) Such
Member’s Units are being acquired for such Member’s own account solely for investment and not with a view to resale or distribution thereof;
(d) Such
Member has been advised to obtain independent counsel to advise them individually in connection with the drafting, preparation, negotiation,
and/or review of this Agreement and, if applicable, the Joinder Agreement. Such Member has conducted their own independent review and
analysis of the business, operations, assets, liabilities, results of operations, financial condition, and prospects of the Company and
any Company Subsidiaries and such Member acknowledges having been provided adequate access to the personnel, properties, premises, and
records of the Company and any Company Subsidiaries for such purpose;
(e) The
determination of such Member to acquire Units has been made by such Member independent of any other Member and independent of any statements
or opinions as to the advisability of such purchase or as to the business, operations, assets, liabilities, results of operations, financial
condition, and prospects of the Company and any Company Subsidiaries that may have been made or given by any other Member or the Company
or by any of their Affiliates or Representatives;
(f) Such
Member has such knowledge and experience in financial and business matters and is capable of evaluating the merits and risks of an investment
in the Company and making an informed decision with respect thereto;
(g) Such
Member is able to bear the economic and financial risk of an investment in the Company for an indefinite period of time;
(h) The
execution, delivery, and performance of this Agreement or the Joinder Agreement by such Member (i) if it is an entity, have been
duly authorized by all requisite entity action on the part of such Member and do not require such Member to obtain any consent or approval
that has not been duly obtained; and (ii) do not contravene in any material respect or result in a default under (A) any provision
of any law or regulation applicable to such Member; (B) if such Member is an entity, its governing documents; or (C) any agreement
or instrument to which such Member is a party or by which such Member is bound; and
(i) This
Agreement is valid, binding, and enforceable against such Member in accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium, and other similar laws of general applicability relating to or affecting creditors’ rights or
general equity principles (regardless of whether considered at law or in equity); and
(j) Neither
the issuance of any Units to such Member nor any provision contained herein will entitle such Member to remain in the employment of or
other service to the Company or affect the right of the Company to terminate such Member’s employment or other service at any time for
any reason, other than as otherwise expressly provided herein or in such Member’s employment, service, or other similar agreement with
the Company or Company Subsidiary, if applicable.
Section 5.03 No
Personal Liability. Except as otherwise provided in the Delaware Act, by Applicable Law or expressly
in this Agreement, no Member will be obligated personally for any debt, obligation or liability of the Company or other Members, whether
arising in contract, tort or otherwise, solely by reason of being a Member.
Section 5.04 No
Withdrawal. So long as a Member continues to hold any Units, such Member shall not have the ability to withdraw or resign
as a Member prior to the dissolution and winding up of the Company and any such withdrawal or resignation or attempted withdrawal or
resignation by a Member prior to the dissolution or winding up of the Company shall be null and void. As soon as any Person who is a
Member ceases to hold any Units, such Person shall no longer be a Member. A Member shall not cease to be
a Member as a result of the bankruptcy of such Member or as a result of any other events specified in § 18-304 of the Delaware Act.
Section 5.05 Death.
The death of any Member shall not cause the dissolution of the Company. In such event, the Company
and its business shall be continued by the remaining Member or Members and Units owned by the deceased Member shall automatically be
Transferred to such Member’s Permitted Transferees, provided, that within a reasonable time after such Transfer, the applicable
Permitted Transferees shall sign a written undertaking substantially in the form of the Joinder Agreement.
Section 5.06 Voting.
Except as otherwise provided by this Agreement (including ARTICLE VIII and Section 13.07)
or as otherwise required by the Delaware Act or Applicable Law each Member shall be entitled to one vote per Unit on all matters upon
which the Members have the right to vote under this Agreement with Preferred Units and Common Units voting together as a single class.
Section 5.07 Actions
Requiring Approval of Members. Without the written approval of Members holding at least 80%
of the outstanding Units, the Company shall not, and shall not enter into any commitment to:
(a) Amend,
modify or waive the Certificate of Formation or this Agreement; provided that the Manager may, without the consent of the Members,
amend the Members Schedule following any new issuance, redemption, repurchase or Transfer of Units in accordance with this Agreement;
(b) Issue
additional Units;
(c) Enter
into, amend in any material respect, waive or terminate any Related Party Agreement other than the entry into a Related Party Agreement
that is on an arm’s length basis and on terms no less favorable to the Company than those that could be obtained from an unaffiliated
third party;
(d) Enter
into or effect any transaction or series of related transactions involving the sale, lease, license, exchange or other disposition (including
by merger, consolidation, sale of stock or sale of assets) by the Company of any assets, other than sales or lease of inventory in the
ordinary course of business consistent with past practice;
(e) Merge,
consolidate, dissolve, wind-up or liquidate the Company or initiate a bankruptcy proceeding involving the Company;
(f) Amend
any agreement set forth in Section 8.04;
(g) Enter
into any new hosting agreement; or
(h) Incur
expenses in excess of any Budget.
Section 5.08 Meetings
of Members.
(a) Meetings
of the Members may be called by (i) the Manager or (ii) by a Member or group of Members holding at least 25% of the Units.
(b) Written
notice stating the place, date and time of the meeting and describing the purposes for which the meeting is called, shall be delivered
not fewer than 5 days before the date of the meeting to each Member, by or at the direction of the Manager or the Member(s) calling
the meeting, as the case may be. The Members may hold meetings at the Company’s principal office or at such other place as the Manager
or the Member(s) calling the meeting may designate in the notice for such meeting.
(c) The
business to be conducted at such meeting need not be limited to the purpose described in the notice and can include business to be conducted
by Members; provided, that the appropriate Members shall have been notified of the meeting in accordance with Section 5.08(b).
Attendance of a Member at any meeting shall constitute a waiver of notice of such meeting, except where a Member attends a meeting for
the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened.
Section 5.09 Quorum.
A quorum of any meeting of the Members shall require the presence of the Members holding at
least 80% of the outstanding Units. No action at any meeting may be taken by the Members unless the appropriate quorum is present. Except
as otherwise set forth in this Agreement, no action may be taken by the Members at any meeting at which a quorum is present without the
affirmative vote of Members holding a majority of the outstanding Units or such other percentage of the outstanding Units as specified
in this Agreement.
Section 5.10 Action
Without Meeting. Notwithstanding the provisions of this Article 2, any matter that is to
be voted on, consented to, or approved by Members may be taken without a meeting, without prior notice, and without a vote if consented
to, in writing or by Electronic Transmission, by a Member or Members holding not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which each Member entitled to vote on the action is present and votes on the
matter. A record shall be maintained by the Manager of each such action taken by written consent of a Member or Members.
Section 5.11 No
Interest in Company Property. No real or personal property of the Company shall be deemed to
be owned by any Member individually, but shall be owned by, and title shall be vested solely in, the Company. Without limiting the foregoing,
each Member hereby irrevocably waives during the term of the Company any right that such Member may have to maintain any action for partition
with respect to the property of the Company.
Section 5.12 Other
Activities; Business Opportunities. Nothing contained in this Agreement shall prevent any Member
or any of its Affiliates from engaging in any other activities or businesses, regardless of whether those activities or businesses are
similar to or competitive with the Business. None of the Members nor any of their Affiliates shall be obligated to account to the Company
or to the other Member for any profits or income earned or derived from other such activities or businesses. None of the Members nor
any of their Affiliates shall be obligated to inform the Company or the other Member of any business opportunity of any type or description.
ARTICLE VI
Allocations
Section 6.01 Allocation
of Net Income and Net Loss.
(a) Until
the earlier to occur of the full repayment or conversion of the Tranche A Loan or the 3-year anniversary of the Effective Date of this
Agreement, for each Fiscal Year (or portion thereof), and except as otherwise provided in this Agreement (including under Section 6.02),
Net Income and Net Loss (and, to the extent necessary, individual items of income, gain, loss or deduction) of the Company shall be allocated
only to Members holding Preferred Units, ratably according to the number of Preferred Units held by each such Member.
(b) Following
the earlier to occur of the full repayment or conversion of the Tranche A Loan or expiration of the term of the Tranche A Loan, for each
Fiscal Year (or portion thereof), and except as otherwise provided in this Agreement (including under Section 6.02), Net Income
and Net Loss (and, to the extent necessary, individual items of income, gain, loss or deduction) of the Company shall be allocated to
the Members, ratably according to the number of Units held by each Member.
Section 6.02 Regulatory
and Special Allocations. Notwithstanding the provisions of Section 6.01:
(a) If
there is a net decrease in Company Minimum Gain (determined according to Treasury Regulations Section 1.704-2(d)(1)) during any
Fiscal Year, each Member shall be specially allocated Net Income for such Fiscal Year (and, if necessary, subsequent Fiscal Years) in
an amount equal to such Member’s share of the net decrease in Company Minimum Gain, determined in accordance with Treasury Regulations
Section 1.704-2(g). The items to be so allocated shall be determined in accordance with Treasury Regulations Sections 1.704-2(f)(6) and
1.704-2(j)(2). This Section 6.02 is intended to comply with the “minimum gain chargeback” requirement in Treasury Regulations
Section 1.704-2(f) and shall be interpreted consistently therewith.
(b) Member
Nonrecourse Deductions shall be allocated in the manner required by Treasury Regulations Section 1.704-2(i). Except as otherwise
provided in Treasury Regulations Section 1.704-2(i)(4), if there is a net decrease in Member Nonrecourse Debt Minimum Gain during
any Fiscal Year, each Member that has a share of such Member Minimum Gain shall be specially allocated Net Income for such Fiscal Year
(and, if necessary, subsequent Fiscal Years) in an amount equal to that Member’s share of the net decrease in Member Nonrecourse Debt
Minimum Gain. Items to be allocated pursuant to this paragraph shall be determined in accordance with Treasury Regulations Sections 1.704-2(i)(4) and
1.704-2(j)(2). This Section 6.02(b) is intended to comply with the “minimum gain chargeback” requirements in Treasury
Regulations Section 1.704-2(i)(4) and shall be interpreted consistently therewith.
(c) In
the event any Member unexpectedly receives any adjustments, allocations or distributions described in Treasury Regulations Section 1.704-1(b)(2)(ii)(d)(4),
(5) or (6), Net Income shall be specially allocated to such Member in an amount and manner sufficient to eliminate the Adjusted
Capital Account Deficit created by such adjustments, allocations or distributions as quickly as possible. This Section 6.02(c) is
intended to comply with the “qualified income offset” requirement in Treasury Regulations Section 1.704-1(b)(2)(ii)(d) and
shall be interpreted consistently therewith.
(d) The
allocations set forth in paragraphs (a), (b), (c) and (d) above (the “Regulatory Allocations”) are intended
to comply with certain requirements of the Treasury Regulations under Code Section 704. Notwithstanding any other provisions of
this ARTICLE VI (other than the Regulatory Allocations), the Regulatory Allocations shall be taken into account in allocating Net
Income and Net Losses among Members so that, to the extent possible, the net amount of such allocations of Net Income and Net Losses
and other items and the Regulatory Allocations to each Member shall be equal to the net amount that would have been allocated to such
Member if the Regulatory Allocations had not occurred.
Section 6.03 Tax
Allocations.
(a) Subject
to Section 6.03(b) through Section 6.03(e), all income, gains, losses, and deductions of the Company shall be allocated,
for federal, state, and local income tax purposes, among the Members in accordance with the allocation of such income, gains, losses,
and deductions among the Members for computing their Capital Accounts, except that if any such allocation for tax purposes is not permitted
by the Code or other Applicable Law, the Company’s subsequent income, gains, losses, and deductions shall be allocated among the Members
for tax purposes, to the extent permitted by the Code and other Applicable Law, so as to reflect as nearly as possible the allocation
set forth herein in computing their Capital Accounts.
(b) Items
of Company taxable income, gain, loss, and deduction with respect to any property contributed to the capital of the Company shall be
allocated among the Members in accordance with Code Section 704(c) and the traditional method of Treasury Regulations Section 1.704-3(b),
so as to take account of any variation between the adjusted basis of such property to the Company for federal income tax purposes and
its Book Value.
(c) If
the Book Value of any Company asset is adjusted pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(f) as provided in
clause (c) of the definition of Book Value, subsequent allocations of items of taxable income, gain, loss, and deduction with respect
to such asset shall take account of any variation between the adjusted basis of such asset for federal income tax purposes and its Book
Value in the same manner as under Code Section 704(c).
(d) Allocations
of tax credit, tax credit recapture, and any items related thereto shall be allocated to the Members according to their interests in
such items as determined by the Board taking into account the principles of Treasury Regulations Section 1.704-1(b)(4)(ii).
(e) The
Company shall make allocations pursuant to this Section 6.03 in accordance with the traditional method in accordance with Treasury
Regulations Section 1.704-3(d).
(f) Allocations
pursuant to this Section 6.03 are solely for purposes of federal, state, and local taxes and shall not affect, or in any way be
taken into account in computing, any Member’s Capital Account or share of Net Income, Net Losses, Distributions, or other items pursuant
to any provisions of this Agreement.
Section 6.04 Allocations
in Respect of Transferred Units. In the event of a Transfer of Units during any Fiscal Year
made in compliance with the provisions of ARTICLE IX, Net Income, Net Losses and other items of income, gain, loss and deduction
of the Company attributable to such Units for such Fiscal Year shall be determined using the interim closing of the books method.
Section 6.05 Curative
Allocations. In the event that the Board determines, after consultation with counsel experienced
in income tax matters, that the allocation of any item of Company income, gain, loss, or deduction is not specified in this ARTICLE VI
(an “Unallocated Item”), or that the allocation of any item of Company income, gain, loss, or deduction hereunder is
clearly inconsistent with the Members’ economic interests in the Company (determined by reference to the general principles of Treasury
Regulations Section 1.704-1(b) and the factors set forth in Treasury Regulations Section 1.704-1(b)(3)(ii)) (a “Misallocated
Item”), then the Manager may allocate such Unallocated Items, or reallocate such Misallocated Items, to reflect such economic
interests; provided, that no such allocation will be made without the prior consent of each Member that would be adversely and
disproportionately affected thereby; and provided, further, that no such allocation shall have any material effect on the
amounts Distributable to any Member, including the amounts to be Distributed upon the complete liquidation of the Company.
ARTICLE VII
Distributions
Section 7.01 General.
(a) Subject
to Section 5.07, Section 7.02, Section 7.03 and Section 7.04(a), and except as otherwise expressly provided in ARTICLE XII,
the Manager shall make Distributions of cash to a Member as soon as possible after income is allocated to such Member, but in no event
later than the 30th day after the end of each calendar quarter; provided that the Manager shall have sole discretion to decide
to forego payment of Distributions in order to provide for the retention and establishment of reserves of up to $100,000, or payment
to third parties of, such funds, in accordance with the provisions of this Agreement, with respect to the reasonable business needs of
the Company (which needs may include, subject to the provisions of this Agreement, the payment or the making of provision for the payment
when due of the Company’s obligations, including present and anticipated debts and obligations, capital needs and expenses, and reasonable
reserves for contingencies of up to $100,000).
(b) Notwithstanding
any provision to the contrary contained in this Agreement, the Company shall not make any Distribution if such Distribution would violate
Section 18-607 of the Delaware Act or other Applicable Law.
Section 7.02 Priority
of Distributions.
(a) After
making all Distributions required for a given Fiscal Quarter under Section 7.02(c) (giving effect to Section 7.03(d)),
and subject to the priority of Distributions pursuant to Section 12.03(c), if applicable, and the limitation under Section 7.02(b),
all Distributions determined to be made by the Manager shall be made to the Members in proportion to the number of Units held by each
Member.
(b) No
distribution may be made with respect to a Common Unit if:
(i) the
distribution would create or increase (or could foreseeably lead to the creation or increase of) a deficit balance in the Capital Account
associated with the Common Unit;
(ii) the
distribution would create or increase (or could foreseeably lead to the creation or increase of) an Adjusted Capital Account Deficit
of a Member holding a Common Unit;
(iii) the
cumulative distributions (including the contemplated distribution) with respect to such Common Unit would exceed the sum of the cumulative
net income previously allocated to such Common Unit and the Capital Contributions made with respect to such Common Unit; or
(iv) neither
the full repayment or conversion of the Tranche A Loan nor the expiration of the term of the Tranche A Loan has occurred.
It is the intent of the Members that all distributions with
respect to a Common Unit come exclusively from net profits earned by the Company after the issuance of the Common Unit, and this Section 7.02(b) is
intended in part to prevent distributions with respect to Common Units from inadvertently coming from Capital Contributions made with
respect to Preferred Units.
(c) Any
distribution that could be made but for the limitation at Section 7.02(b) shall be made to Members holding Preferred Units
in proportion to the number of Preferred Units held by them.
Section 7.03 Tax
Advances.
(a) Subject
to the Manager’s sole discretion to retain any amounts necessary to satisfy the Company’s then current obligations, at least 5
Business Days before each date prescribed by the Code for a calendar-year corporation to pay quarterly installments of estimated tax,
the Company shall use commercially reasonable efforts to Distribute cash to each Member in proportion to and to the extent of such Member’s
Quarterly Estimated Tax Amount for the applicable calendar quarter (each such Distribution, a “Tax Advance”).
(b) If,
at any time after the final Quarterly Estimated Tax Amount has been Distributed pursuant to Section 7.03(a) with respect to
any Fiscal Year, the aggregate Tax Advances to any Member with respect to such Fiscal Year are less than such Member’s Tax Amount for
such Fiscal Year (a “Shortfall Amount”), the Company shall use commercially reasonable efforts to Distribute cash in
proportion to and to the extent of each Member’s Shortfall Amount. The Company shall use commercially reasonable efforts to Distribute
Shortfall Amounts with respect to a Fiscal Year before the seventy-fifth (75th) day of the next succeeding Fiscal Year; provided,
that if the Company has made Distributions other than pursuant to this Section 7.02(c), the Board may apply such Distributions to
reduce any Shortfall Amount.
(c) If
the aggregate Tax Advances made to any Member pursuant to this Section 7.02(c) for any Fiscal Year exceed such Member’s Tax
Amount (an “Excess Amount”), such Excess Amount shall reduce subsequent Tax Advances that would be made to such Member
pursuant to this Section 7.02(c), except to the extent taken into account as an advance pursuant to Section 7.03(d).
(d) Any
Distributions made to a Member pursuant to this Section 7.02(c) shall be treated for purposes of this Agreement as advances
on Distributions pursuant to Section 7.02 and shall reduce, dollar-for-dollar, the amount otherwise Distributable to such Member
pursuant to Section 7.02.
Section 7.04 Tax
Withholding; Withholding Advances.
(a) If
requested by the Manager, each Member shall, if able to do so, deliver to the Manager:
(i) an
affidavit in form satisfactory to the Manager that such Member (or its members, as the case may be) is not subject to withholding under
the provisions of any federal, state, local, foreign, or other Applicable Law;
(ii) any
certificate that the Manager may reasonably request with respect to any such laws; and/or
(iii) any
other form or instrument reasonably requested by the Manager relating to such Member’s status under such law.
If a Member fails or is unable to deliver
to the Manager the affidavit described in Section 7.04(a)(i), the Board may withhold amounts from such Member in accordance with
Section 7.04(b).
(b) The
Company is hereby authorized at all times to make payments (“Withholding Advances”) with respect to each Member in amounts
required to discharge any obligation of the Company (as determined by the Board based on the advice of legal or tax counsel to the Company)
to withhold or make payments to any federal, state, local, or foreign taxing authority (a “Taxing Authority”) with respect
to any Distribution or allocation by the Company of income or gain to such Member (including payments made pursuant to Code Section 6225
and allocable to a Member as determined by the Board) and to withhold the same from Distributions to such Member. Any funds withheld
from a Distribution by reason of this Section 7.04(b) shall nonetheless be deemed Distributed to the Member in question for
all purposes under this Agreement and, at the option of the Manager, shall be charged against the Member’s Capital Account.
(c) Any
Withholding Advance made by the Company to a Taxing Authority on behalf of a Member and not simultaneously withheld from a Distribution
to that Member shall, with interest thereon accruing from the date of payment at a rate equal to the prime rate published in the Wall
Street Journal on the date of payment plus two percent (2.0%) per annum (the “Company Interest Rate”):
(i) be
promptly repaid to the Company by the Member on whose behalf the Withholding Advance was made (which repayment by the Member shall not
constitute a Capital Contribution, but shall credit the Member’s Capital Account if the Manager shall have initially charged the amount
of the Withholding Advance to the Capital Account); or
(ii) with
the consent of the Manager, be repaid by reducing the amount of the next succeeding Distribution or Distributions to be made to such
Member (which reduction amount shall be deemed to have been Distributed to the Member, but which shall not further reduce the Member’s
Capital Account if the Manager shall have initially charged the amount of the Withholding Advance to the Capital Account).
Interest shall cease to accrue from the
time the Member on whose behalf the Withholding Advance was made repays such Withholding Advance (and all accrued interest) by either
method of repayment described above.
(d) Each
Member hereby agrees to indemnify and hold harmless the Company and the other Members from and against any liability with respect to
taxes, interest, or penalties which may be asserted by reason of the Company’s failure to deduct and withhold tax on amounts Distributable
or allocable to such Member. The Company may pursue and enforce all rights and remedies it may have against each Member under this Section 7.04,
including bringing a lawsuit to collect repayment with interest of any Withholding Advances.
(e) Neither
the Company nor any Manager shall be liable for any excess taxes withheld in respect of any Distribution or allocation of income or gain
to a Member. In the event of an overwithholding, a Member’s sole recourse shall be to apply for a refund from the appropriate Taxing
Authority.
Section 7.05 Distributions
in Kind.
(a) The
Manager is not authorized to make Distributions in the form of securities or other property held by the Company without the consent of
holders of at least 80% of the outstanding Units voting together as a single class; and provided, that, Tax Advances shall only
be made in cash. In any non-cash Distribution, the securities or property so Distributed will be Distributed among the Members in the
same proportion and priority as cash equal to the Fair Market Value of such securities or property would be Distributed among the Members
pursuant to Section 7.02.
(b) Any
Distribution of securities shall be subject to such conditions and restrictions as the Manager determines are required or advisable to
ensure compliance with Applicable Law. In furtherance of the foregoing, the Manager may require that the Members execute and deliver
such documents as the Manager may deem necessary or appropriate to ensure compliance with all federal and state securities laws that
apply to such Distribution and any further Transfer of the Distributed securities, and may appropriately legend the certificates that
represent such securities to reflect any restriction on Transfer with respect to such laws.
ARTICLE VIII
Management
Section 8.01 Management
of the Company. Except for matters which require Member consent as set forth in this Agreement,
the business and affairs of the Company shall be managed, operated and controlled by or under the direction of the Manager. Subject to
the provisions of Section 5.07, the Manager shall have, and are hereby granted, full and complete power, authority and discretion
for, on behalf of and in the name of the Company, to take such actions as they may deem necessary or advisable to carry out any and all
of the objectives and purposes of the Company.
Section 8.02 Number,
Election, and Term of Manager.
(a) There
shall be one Manager, who shall initially be the BTOG Manager.
(b) A
new Manager may be appointed, from time-to-time by the affirmative vote of Members holding at least 80% of the outstanding Units. Each
Manager, including each of the initial Manager named in this Agreement, shall serve for a term ending at the next meeting of Members
called for the purpose of electing Manager, or until the Manager’s earlier, death, resignation or removal.
(c) The
Manager shall maintain a schedule of all Managers with their respective mailing addresses (the “Managers Schedule”),
and shall update the Managers Schedule upon the removal or replacement of any Manager in accordance with this Section 8.02 or Section 8.03.
A copy of the Managers Schedule as of the execution of this Agreement is attached hereto as Schedule B.
Section 8.03 Removal;
Resignation; Vacancies.
(a) Members
holding at least 80% of the outstanding Units may remove a Manager, with or without cause.
(b) A
Manager may resign at any time by delivering a written resignation to the Company. Any such resignation shall be effective upon receipt
thereof unless it is specified to be effective at some other time or upon the occurrence of some other event. The acceptance of a resignation
by the other Manager shall not be necessary to make it effective.
(c) The
resignation or removal of a Manager who is also a Member shall not constitute a withdrawal or expulsion of the Manager as a Member of
the Company or otherwise affect the Manager’s rights as a Member. If a Manager resigns or is removed, a meeting of Members to elect a
successor must be called promptly and held as soon as reasonably possible.
Section 8.04 Replacement
of the Manager for Cause. Notwithstanding anything set forth in Section 8.02 or Section 8.03,
upon the occurrence of any Manager Removal Right Event (as defined below), for the remainder of the term of this Agreement, the [ ] Member
shall have the right, in its sole discretion, to remove the Manager and appoint a new Manager. “Manager Removal Right Event”
means:
(a) A
disruption or limitation of the operations of the Company during, in connection with or resulting from an investigation by a Governmental
Authority
(b) A
breach or termination of an energy supply agreement to be entered into by the Company and an energy supply company (the “Energy
Supply Agreement”) by any party thereto;
(c) A
breach or termination of an Operation and Maintenance Service Framework Agreement or other hosting agreement to be entered into by the
Company and Bitmain Technologies Georgia Limited (the “Bitmain Agreement”) by any party thereto.
(d) A
Lease Agreement for the property on which the Data Center is to be located at a monthly rate of $20,000, which lease payments begin after
the Data Center is energized above 20% of the total 25MW capacity, to be entered into by and between the Company and [ ] (the “Lease”
and, together with the Energy Supply Agreement and the Bitmain Agreement, the “Key Agreements”) by any party thereto;
(e) Failure
to enter into any of the Key Agreements by March 31, 2024; or
(f) A
disruption or limitation of the operations of the Company resulting from negligence of the Manager.
Section 8.05 Officers.
The Manager may appoint individuals as officers of the Company (the “Officers”)
as they deem necessary or desirable to carry on the business of the Company and the Manager may delegate to such Officers such power
and authority as the Manager deems advisable. No Officer need be a Member of the Company. Any individual may hold two or more offices
of the Company. Each Officer shall hold office until a successor is designated by the Manager or until the Officer’s earlier death, resignation
or removal. Any Officer may resign at any time on written notice to the Manager. Any Officer may be removed by the Manager with or without
cause at any time. A vacancy in any office occurring because of death, resignation, removal or otherwise, may, but need not, be filled
by the Manager.
Section 8.06 Other
Activities of Managers; Business Opportunities. The Manager shall devote so much time and attention
to the business of the Company as they deem appropriate in their sole discretion. Nothing contained in this Agreement shall prevent any
Manager from engaging in any other activities or businesses, regardless of whether those activities or businesses are similar to or competitive
with the Company. None of the Managers shall be obligated to account to the Company or to the Members for any profits or income earned
or derived from other such activities or businesses. None of the Managers shall be obligated to inform the Company or the Members of
any business opportunity of any type or description.
Section 8.07 Compensation
and Reimbursement of Managers; No Employment.
(a) After
the Data Center is energized and hosting operating cryptomining equipment, the Company will pay a fee each calendar quarter to the Manager
equal to the product of (i) $0.002 multiplied by (ii) the number of kilowatts consumed by cryptomining servers during
the applicable quarter; provided, however, that no such fee will be paid for any quarter unless aggregate Distributions to the Members
pursuant to ARTICLE VII are at least $300,000 for such quarter.
(b) The
Company shall reimburse the Manager for all ordinary, necessary and direct expenses incurred by the Manager in performance of its duties
as Manager. Nothing contained in this Section 8.07 shall be construed to preclude any Manager from serving the Company in any other
capacity and receiving reasonable compensation for such services.
(c) This
Agreement does not, and is not intended to, confer upon the Manager any rights with respect to continued employment by the Company, and
nothing herein should be construed to have created any employment agreement with any Manager.
(d) To
the extent that the Company is sharing services, equipment, overhead or other expenses with a Manager as part of its management of data
centers not owned by the Company, such expenses will be shared pro rata between the entities sharing such expenses and in no event will
the Company be required to pay expenses for more than its share of such expenses or on terms less favorable to the Company than those
that could be obtained from an unaffiliated third party.
Section 8.08 No
Personal Liability. Except as otherwise provided in the Delaware Act, by Applicable Law or expressly
in this Agreement, no Manager will be obligated personally for any debt, obligation or liability of the Company, whether arising in contract,
tort or otherwise, solely by reason of being a Manager.
ARTICLE IX
TRANSFER
Section 9.01 General
Restrictions on Transfer.
(a) Except
as permitted pursuant to Section 9.02 or in accordance with the procedures set forth in Section 9.03 or Section 9.04,
no Member shall Transfer all or any portion of its Units. No Transfer of Units to a Person not already a Member of the Company shall
be deemed completed until the prospective Transferee is admitted as a Member of the Company in accordance with Section 5.01(b) hereof.
(b) Notwithstanding
any other provision of this Agreement (including Section 9.02), each Member agrees that it will not Transfer all or any portion
of its Units, and the Company agrees that it shall not issue any new Units:
(i) except
as permitted under the Securities Act and other applicable federal or state securities or blue sky laws, and then, with respect to a
Transfer of Units, only upon delivery to the Company of an opinion of counsel in form and substance satisfactory to the Company to the
effect that such Transfer may be effected without registration under the Securities Act;
(ii) if
such Transfer or issuance would cause the Company to be considered a “publicly traded partnership” under Section 7704(b) of
the Code within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii), including the look-through rule in Treasury
Regulations Section 1.7704-1(h)(3);
(iii) if
such Transfer or issuance would affect the Company’s existence or qualification as a limited liability company under the Delaware Act;
(iv) if
such Transfer or issuance would cause the Company to lose its status as a partnership for federal income tax purposes;
(v) if
such Transfer or issuance would cause the Company to be required to register as an investment company under the Investment Company Act
of 1940, as amended; or
(vi) if
such Transfer or issuance would cause the assets of the Company to be deemed “Plan Assets” as defined under the Employee Retirement
Income Security Act of 1974 or its accompanying regulations or result in any “prohibited transaction” thereunder involving
the Company.
(c) Any
Transfer or attempted Transfer of any Units in violation of this Agreement shall be null and void, no such Transfer shall be recorded
on the Company’s books and the purported Transferee in any such Transfer shall not be treated (and the purported Transferor shall continue
be treated) as the owner of such Units for all purposes of this Agreement.
(d) For
the avoidance of doubt, any Transfer of Units permitted by this Agreement shall be deemed a sale, transfer, assignment or other disposal
of such Units in their entirety as intended by the parties to such Transfer, and shall not be deemed a sale, transfer, assignment or
other disposal of less than all of the rights and benefits such Units unless otherwise explicitly agreed to by the parties to such Transfer.
Section 9.02 Permitted
Transfers. The provisions of Section 9.01(a), Section 9.03 and Section 9.04 shall
not apply to any Transfer by any Member of all or any portion of its Units to any of the following:
(a) Any
Affiliate of such Member; or
(b) With
respect to any Member that is a natural Person, (i) such Member’s Spouse, parent, siblings, descendants (including adoptive relationships
and stepchildren) and the Spouses of each such natural persons (collectively, “Family Members”); (ii) a trust under
which the distribution of Units may be made only to such Member and/or any Family Member of such Member; (iii) a charitable remainder
trust, the income from which will be paid to such Member during their life; (iv) a corporation, partnership or limited liability
company, the stockholders, partners or members of which are only such Member and/or Family Members of such Member; or (v) by will
or by the laws of intestate succession, to such Member’s executors, administrators, testamentary trustees, legatees or beneficiaries.
(c) Any
Transferee pursuant to Section 9.05.
Section 9.03 Right
of First Refusal.
(a) Right
of First Refusal. Subject to the terms and conditions specified in this Section 9.03, each Member shall have a right of first
refusal if any other Member (the “Offering Member”), receives an offer from an Independent Third Party, other than an
offer by an Independent Third Party to purchase the BTOG Member’s Units pursuant to Section 9.05 for which only the [ ] Member
shall have a right of first refusal hereunder, that the Offering Member desires to accept to Transfer all or any portion of the Units
owned by the Offering Member (the “Offered Interests”). Each time the Offering Member receives an offer for all or any
portion of its Units, the Offering Member shall first make an offering of the Offered Interests to the other Members who have a right
of first refusal (the “ROFR Rightholders”) in accordance with the following provisions of this Section 9.03 prior
to Transferring such Offered Interests to the Independent Third Party (other than Transfers that (i) are permitted by Section 9.02,
(ii) are proposed to be made by a Dragging Member or required to be made by a Drag-along Member pursuant to Section 9.04 or
(iii) with respect to Members other than the [ ] Member, Transfers pursuant to Section 9.05). Notwithstanding the foregoing,
the [ ] Member’s rights as a ROFR Rightholder with respect to Offered Interests pursuant to Section 9.05 shall be governed
by Section 9.05 unless otherwise specified in Section 9.05.
(b) Offer
Notice.
(i) The
Offering Member shall, within ten Business Days of receipt of the offer from the Independent Third Party, give written notice (the “Offering
Member Notice”) to the Company and the ROFR Rightholders stating that it has received a bona fide offer from an Independent
Third Party and specifying: (A) the amount of Offered Interests to be Transferred by the Offering Member; (B) the name of the
Person who has offered to purchase such Offered Interests; (C) the purchase price and the other material terms and conditions of
the Transfer, including a description of any non-cash consideration in sufficient detail to permit the valuation thereof; and (D) the
proposed date, time and location of the closing of the Transfer, which shall not be less than 60 days from the date of the Offering Member
Notice.
(ii) The
Offering Member Notice shall constitute the Offering Member’s offer to Transfer the Offered Interests to the ROFR Rightholders, which
offer shall be irrevocable until the end of the ROFR Notice Period (as hereinafter defined).
(iii) By
delivering the Offering Member Notice, the Offering Member represents and warrants to the Company and each ROFR Rightholder that: (a) the
Offering Member has full right, title and interest in and to the Offered Interests; (b) the Offering Member has all the necessary
power and authority and has taken all necessary action to sell such Offered Interests as contemplated by this Section 9.03; and
(c) the Offered Interests are free and clear of any and all Liens or other restrictions or limitations of any nature whatsoever
other than those arising as a result of or under the terms of this Agreement.
(c) Exercise
of the Rights of First Refusal.
(i) Upon
receipt of the Offering Member Notice, each ROFR Rightholder shall have 10 Business Days (the “ROFR Notice Period”)
to elect to purchase all (but not less than all) of the Offered Interests by delivering a written notice (a “ROFR Offer Notice”)
to the Offering Member and the Company stating that it offers to purchase such Offered Interests on the terms specified in the Offering
Member Notice. Any ROFR Offer Notice shall be binding upon delivery and irrevocable by the applicable ROFR Rightholder. If more than
one ROFR Rightholder delivers a ROFR Offer Notice, each such ROFR Rightholder (the “Purchasing Member”) shall be allocated
its pro rata share (based on its percentage of Units, including Preferred Units and Common Units as a single class, in the Company) of
the Offered Interests, unless otherwise agreed by such Members.
(ii) Each
ROFR Rightholder who does not deliver a ROFR Offer Notice during the ROFR Notice Period shall be deemed to have waived all of such ROFR
Rightholder’s rights to purchase the Offered Interests under this Section 9.03, and the Offering Member shall thereafter, subject
to the rights of any Purchasing Member, be free to sell the Offered Interests to the Independent Third Party in the Offering Member Notice
without any further obligation to such ROFR Rightholder pursuant to this Section 9.03.
(d) Consummation
of Sale. If no ROFR Rightholder delivers a ROFR Notice in accordance with Section 9.03(c), then, to the extent applicable, the
Offering Member may, during the 60-day period immediately following the expiration of the ROFR Notice Period (which period may be extended
for a reasonable time not to exceed 90 days to the extent reasonably necessary to obtain any required approvals or consents from any
Governmental Authority), Transfer all of the Offered Interests to the Independent Third Party on terms and conditions no more favorable
to the Independent Third Party than those set forth in the Offering Member Notice. If the Offering Member does not Transfer the Offered
Interests within such period, the rights provided hereunder shall be deemed to be revived and the Offered Interests shall not be Transferred
to the Independent Third Party unless the Offering Member sends a new Offering Member Notice in accordance with, and otherwise complies
with, this Section 9.03(d).
(e) Cooperation.
Each Member shall take all actions as may be reasonably necessary to consummate the sale contemplated by this Section 9.03(d) including
entering into agreements and delivering certificates and instruments and consents as may be deemed necessary or appropriate.
(f) Closing.
At the closing of any sale and purchase pursuant to this Section 9.03(d), the Offering Member shall deliver to the Purchasing
Member(s) a certificate or certificates representing the Offered Interests to be sold (if any), accompanied by evidence of Transfer
and all necessary transfer taxes paid and stamps affixed, if necessary, against receipt of the purchase price therefore from such Purchasing
Member(s) by certified or official bank check of by wire transfer of immediately available funds.
Section 9.04 Drag-along
Rights.
(a) Participation.
If one or more Members (together with their respective Permitted Transferees) holding no less than 80% of the then outstanding Units
(such Member or Members, the “Dragging Member”), proposes to Transfer, in one transaction or a series of related transactions,
all of the Units owned by the Dragging Member (a “Drag-along Sale”), the Dragging Member shall have the right, after
delivering the Drag-along Notice in accordance with Section 9.04(c) and subject to compliance with Section 9.04(d), to
require that each other Member (each, a “Drag-along Member”) participate in such sale in the manner set forth in Section 9.04(b).
(b) Sale
of Units. Subject to compliance with Section 9.04(d), each Drag-along Member shall sell in the Drag-along Sale all of the Units
held by such Drag-along Member.
(c) Sale
Notice. The Dragging Member shall exercise its rights pursuant to this Section 9.04 by delivering a written notice (the “Drag-along
Notice”) to the Company and each Drag-along Member no more than 10 Business Days after the execution and delivery by all of
the parties thereto of the definitive agreement entered into with respect to the Drag-along Sale and, in any event, no later than 15
Business Days prior to the closing date of such Drag-along Sale. The Drag-along Notice shall make reference to the Dragging Members’
rights and obligations hereunder and shall describe in reasonable detail:
(i) The
name of the person or entity to whom such Units are proposed to be sold;
(ii) The
proposed date, time and location of the closing of the sale;
(iii) The
proposed amount of consideration for the Drag-along Sale and the other material terms and conditions of the Drag-along Sale, including
a description of any non-cash consideration in sufficient detail to permit the valuation thereof; and
(iv) A
copy of any form of agreement proposed to be executed in connection therewith.
(d) Conditions
of Sale. The obligations of the Drag-along Members in respect of a Drag-along Sale under this Section 9.04 are subject to the
satisfaction of the following conditions:
(i) The
consideration to be received by each Drag-along Member shall be the same form and amount of consideration to be received by the Dragging
Member per percentage interest and the terms and conditions of such sale shall, except as otherwise provided in Section 9.04(d)(ii),
be the same as those upon which the Dragging Member sells its Units;
(ii) If
the Dragging Member or any Drag-along Member is given an option as to the form and amount of consideration to be received, the same option
shall be given to all Drag-along Members; and
(iii) Each
Drag-along Member shall execute the applicable purchase agreement, if applicable, and make or provide the same representations, warranties,
covenants, indemnities and agreements as the Dragging Member makes or provides in connection with the Drag-along Sale (except that in
the case of representations, warranties, covenants, indemnities and agreements pertaining specifically to the Dragging Member, the Drag-along
Member shall make the comparable representations, warranties, covenants, indemnities and agreements pertaining specifically to itself);
provided, that all representations, warranties, covenants and indemnities shall be made by the Dragging Member and each Drag-along
Member severally and not jointly and any indemnification obligation shall be pro rata based on the consideration received by the Dragging
Member and each Drag-along Member (other than any indemnification obligation pertaining specifically to the Dragging Member or a Drag-along
Member, which obligation shall be the sole obligation of such Dragging Member or Drag-along Member), in each case in an amount not to
exceed the aggregate proceeds received by the Dragging Member and each such Drag-along Member in connection with the Drag-along Sale.
(e) Cooperation.
Each Drag-along Member shall take all actions as may be reasonably necessary to consummate the Drag-along Sale, including entering into
agreements and delivering certificates and instruments, in each case, consistent with the agreements being entered into and the certificates
being delivered by the Dragging Member, but subject to Section 9.04(d)(iii).
(f) Expenses.
The fees and expenses of the Dragging Member incurred in connection with a Drag-along Sale and for the benefit of all Drag-along
Members (it being understood that costs incurred by or on behalf of a Dragging Member for its sole benefit will not be considered to
be for the benefit of all Drag-along Members), to the extent not paid or reimbursed by the Company or the Independent Third Party, shall
be shared by the Dragging Member and all the Drag-along Members on a pro rata basis, based on the consideration received by each such
Member; provided, that no Drag-along Member shall be obligated to make any out-of-pocket expenditure prior to the consummation of the
Drag-along Sale.
(g) Consummation
of Sale. The Dragging Member shall have 90 days following the date of the Drag-along Notice in which to consummate the Drag-along
Sale, on the terms set forth in the Drag-along Notice (which 90 -day period may be extended for a reasonable time not to exceed 120 days
to the extent reasonably necessary to obtain required approvals or consents from any Governmental Authority). If at the end of such period
the Dragging Member has not completed the Drag-along Sale, the Dragging Member may not then exercise its rights under this Section 9.04
without again fully complying with the provisions of this Section 9.04.
Section 9.05 BTOG
Member Unit Sales Upon BTOG Ownership Government Determination.
(a) Government
Interruption of Business. Notwithstanding any other provisions of this Agreement, if a Governmental Authority determines to limit
or interrupt the Company’s operations as a result of the ownership of Units by the BTOG Member (a, “BTOG Ownership Government
Determination”), and subject to the rights of the [ ] Member pursuant to Section 9.03 and Section 9.06 and the procedures
set forth below in Section 9.05(a)(ii):
(i) the
BTOG Member shall have the right to sell all or a portion of its Units to an Approved Independent Third Party.
(ii) The
[ ] Member shall have the option and right (the “Call Right”), but not the obligation, to cause the BTOG Member to
sell all or a portion of the Units owned by the BTOG Member (the “Call Interest”) not otherwise sold to an Independent
Third Party in accordance with this Section 9.05 to the [ ] Member or a purchaser designated in writing by the [ ] Member for an
aggregate purchase price equal to (x) the number of Units that make up the Call Interest multiplied by (y) the Per Unit
Price determined by reference to the information provided for the Call Seller on the Members Schedule.
(b) Notice
Procedures.
(i) The
Manager shall provide written notice of a BTOG Ownership Government Determination to the [ ] Member no later than two (2) Business
Days after such BTOG Ownership Government Determination.
(ii) No
later than sixty (60) days after a BTOG Member Government Determination, the BTOG Member may provide an Offering Member Notice to the
[ ] Member in accordance with Section 9.03(b).
(iii) The
[ ] Member shall have the right to request additional information about the proposed purchaser named in such Offering Member Notice for
the purpose of investigating whether any national security concerns may be raised by such purchaser’s proposed ownership of the
Offered Units, provided that such requests will not be unreasonably delayed but may be ongoing as information is investigated and processed.
(iv) Within
two (2) weeks of receipt of all information requested pursuant to Section 9.05(b)(iii), the [ ] Member will notify the BTOG
Member in writing (the “[ ] Member Rights Exercise Notice”):
(A) of
its election, if any, to exercise its right to purchase all (but not less than all) of the Offered Interests on the terms specified in
the Offering Member Notice; provided, that, if the [ ] Purchaser does not elect to exercise such right in such notice, such right shall
be waived;
(B) if
the [ ] Member does not elect to purchase the Offered Interests, of the [ ] Member’s consent to the admission of the proposed purchaser
as a Member, or its lack of consent thereto specifying the national security concerns raised by its investigation that lead to such refusal
to consent;
(C) if
the [ ] Member consents to the admission of the proposed purchaser as a Member, the election, if any, by the [ ] Member to sell its Units
in accordance with Section 9.06; provided, however, that the [ ] Member’s sale of its Units will be limited to the extent
necessary to allow the BTOG Member to sell any Units required to cause the BTOG Ownership Government Determination to be reversed; and
(D) the
exercise, if any, of the [ ] Member’s Call Right, if the [ ] Member has not consented to admission of the proposed purchaser as
a Member or if a closing of a proposed Transfer included in an Offering Member Notice does not occur in accordance with Section 9.05(c)(i).
(v) Any
ROFR Offer Notice delivered pursuant to this Section 9.05 shall be binding upon delivery and irrevocable by the BTOG Member.
(vi) At
any time after a BTOG Ownership Government Determination, the [ ] Member, acting in its sole discretion, may deliver to the BTOG Member
a written, unconditional, and irrevocable notice (the “Call Exercise Notice”) stating its election, if it receives no
Offering Member Notice in accordance with Section 9.05(b)(ii) or if a closing of a proposed Transfer included in an Offering
Member Notice does not occur in accordance with Section 9.05(c)(i), to purchase the Call Interest from the BTOG Member for an aggregate
purchase price equal to (x) the number of Units that make up the Call Interest multiplied by (y) the Per Unit Price determined
by reference to the information provided for the Call Seller on the Members Schedule.
(c) Closing.
(i) If
in the [ ] Member Rights Exercise Notice the [ ] Member has not elected to exercise its rights to purchase the all of the Offered Interests
and has consented to the admission of the proposed purchaser as a Member, the BTOG Member shall thereafter, subject to any right exercised
by the [ ] Member to sell its own Units, be free to sell the Offered Interests to the Independent Third Party named in the Offering Member
Notice without any further obligation to any other Member during the 60-day period immediately following the BTOG Members receipt of
the the [ ] Member Rights Exercise Notice, Transfer all of the Offered Interests to the Independent Third Party on terms and conditions
no more favorable to the Independent Third Party than those set forth in the Offering Member Notice. If the Offering Member does not
Transfer the Offered Interests within such period, the Offered Interests shall not be Transferred to the Independent Third Party
(ii) If
in the [ ] Member has provided a Call Exercise Notice to the BTOG Member or included an exercise of its Call Right in the [ ] Member
Rights Exercise Notice,
(A) the
closing of the purchase of the Call Interest pursuant to the Call Right (the “Call Closing”) shall take place no later
than thirty (30) days following (I) the sixtieth (60th) calendar day following a BTOG Ownership Government Determination
if the BTOG Member submitted no Offering Member Notice or no proposed purchaser included in any Offering Member Notice was approved for
admission as a Member by the [ ] Member or (II) the last day on which a a Transfer of the Offered Interests to an Independent Third
Party may close pursuant to Section 9.05(c)(i) Call Exercise Notice; provided that the [ ] Member shall give the BTOG Member
at least ten (10) days written notice of the date of closing;
(B) At
the Call Closing (I) the Purchase Price shall be reduced by the amount of any unpaid principal and interest owed under the Tranche
A Loan, if any, which shall constitute full satisfaction of the Tranche A Loan (the “Adjusted Purchase Price”), (II) the
[ ] Member shall provide the Adjusted Purchase Price which may be in the form of a promissory note to be paid, at the [ ] Member’s option,
over (x) 6 months paid quarterly with the first payment due on the three month anniversary of the making of such promissory note
and no interest or (y) 24 months paid quarterly with the first payment due on the three month anniversary of the making of such
promissory note with an interest rate of 12%, (III) the BTOG Member shall deliver to the [ ] Member a certificate or certificates
(if any) representing the Call Interest to be sold, accompanied by an assignment of any certificate or certificates to the Member and
(IV) the BTOG Member shall represent and warrant to the [ ] Member that (x) the BTOG Member has full right, title, and interest
in and to the Call Interest, (y) the BTOG Member has all the necessary entity power and authority and has taken all necessary action
to sell the Call Interest as contemplated by this Section 9.05, and (z) the Call Interest is free and clear of any and all
Liens or other restrictions or limitations of any nature whatsoever, other than those arising as a result of or under the terms of this
Agreement.
(d) Cooperation.
The BTOG Member and the [ ] Member, to the extent the [ ] Member is purchasing any BTOG Units or selling its own Units pursuant to
this Section 9.05, shall take all actions as may be reasonably necessary to consummate the Transfers contemplated by this Section 9.05,
including, without limitation, entering into agreements and delivering certificates and instruments and consents as may be deemed necessary
or appropriate to consummate such Transfers.
Section 9.06 Tag-along
Rights.
(a) Participation.
Subject to the terms and conditions specified in Section 9.01, Section 9.02 and Section 9.03, if a Member (together
with its Permitted Transferees) (the “Selling Member”) proposes to Transfer all or a portion of its Units to an Independent
Third Party (a “Proposed Transferee”), the [ ] Member (the “Tag-along Member”) shall be permitted to
participate in such sale (a “Tag-along Sale”) on the terms and conditions set forth in this Section 9.06.
(b) Application
of Transfer Restrictions. The provisions of this Section 9.06 shall only apply to Transfers pursuant to Section 9.05 and
other Transfers in which:
(i) No
ROFR Rightholder has exercised its right under Section 9.03 or Section 9.05 to purchase the Offered Interests; and
(ii) The
Dragging Member has elected to not exercise its drag-along right under Section 9.04; and
(c) Sale
Notice. Prior to the consummation of any Transfer of Units pursuant to Section 9.05 or qualifying under Section 9.06(b)(ii) and
after satisfying its obligations pursuant to Section 9.03, the Selling Member shall deliver to the Company and the [ ] Member a
written notice (a “Sale Notice”) of the proposed Tag-along Sale as soon as practicable following the expiration of the
ROFR Rightholder Option Period, if applicable, and in no event later than five (5) days thereafter. The Sale Notice shall make reference
to the Tag-along Members’ rights hereunder and shall describe in reasonable detail:
(i) The
aggregate percentage of Units the Proposed Transferee has offered to purchase;
(ii) The
identity of the Proposed Transferee;
(iii) The
proposed date, time and location of the closing of the Tag-along Sale;
(iv) The
purchase price and other material terms and conditions of the Transfer, including a description of any non-cash consideration in sufficient
detail to permit the valuation thereof; and
(v) A
copy of any form of agreement proposed to be executed in connection therewith.
(d) Exercise
of Tag-along Right.
(i) The
Selling Member and each Tag-along Member timely electing to participate in the Tag-along Sale pursuant to Section 9.06(d)(ii) shall
have the right to Transfer in the Tag-along Sale the amount of Membership Interests, equal to the product of (x) the total percentage
of Units that the Proposed Transferee proposes to buy as stated in the Sale Notice and (y) a fraction (A) the numerator of
which is equal to the percentage of Units then held by the [ ] Member, and (B) the denominator of which is equal to the total percentage
of Units then held by the Selling Member and the Tag-along Member timely electing to participate in the Tag-along Sale pursuant to Section 9.06(d)(ii) (such
amount, the “Tag-along Portion”).
(ii) The
Tag-along Member shall exercise its right to participate in a Tag-along Sale by delivering to the Selling Member a written notice (a
“Tag-along Notice”) stating its election to do so and specifying the amount of Membership Interests (up to its Tag-along
Portion) to be Transferred by it no later than ten (10) Business Days after receipt of the Sale Notice (the “Tag-along Period”);
provided that any such election in in connection with a Transfer pursuant to Section 9.05 may be made in the [ ] Member Rights Exercise
Notice or a Tag-along Notice.
(iii) The
offer of the Tag-along Member set forth in a Tag-along Notice or an [ ] Member Rights Exercise Notice shall be irrevocable, and, to the
extent such offer is accepted, the Tag-along Member shall be bound and obligated to consummate the Transfer on the terms and conditions
set forth in this Section 9.06 or Section 9.05(c)(i), as applicable.
(e) Waiver.
If the Tag-along Member does not deliver a Tag-along Notice or exercise make the same election in the [ ] member Rights Exercise,
if applicable, the Tag-Along Member shall be deemed to have waived all of such Tag-along Member’s rights to participate in the Tag-along
Sale, and the Selling Member shall (subject to any other requirements of Section 9.05, if applicable) thereafter be free to sell
to the Proposed Transferee the Membership Interests identified in the Sale Notice at a price that is no greater than the price set forth
in the Sale Notice and on other terms and conditions which are not materially more favorable to the Selling Member than those set forth
in the Sale Notice, without any further obligation to the non-accepting Tag-along Members.
(f) Conditions
of Sale.
(i) Each
Member participating in the Tag-along Sale shall receive the same consideration after deduction of such Member’s proportionate share
of the related expenses in accordance with Section 9.06(h) below.
(ii) The
Tag-along Member shall make or provide the same representations, warranties, covenants, indemnities and agreements as the Selling Member
makes or provides in connection with the Tag-along Sale (except that in the case of representations, warranties, covenants, indemnities
and agreements pertaining specifically to the Selling Member, the Tag-along Member shall make the comparable representations, warranties,
covenants, indemnities and agreements pertaining specifically to itself); provided, that all representations, warranties, covenants
and indemnities shall be made by the Selling Member and each Tag-along Member severally and not jointly and any indemnification obligation
shall be pro rata based on the consideration received by the Selling Member and the Tag-along Member (other than any indemnification
obligation pertaining specifically to the Selling Member or the Tag-along Member, which obligation shall be the sole obligation of such
Selling or Tag-along Member), in each case in an amount not to exceed the aggregate proceeds received by the Selling Member and the Tag-along
Member in connection with the Tag-along Sale.
(g) Cooperation.
The Tag-along Member shall take all actions as may be reasonably necessary to consummate the Tag-along Sale, including entering into
agreements and delivering certificates and instruments, in each case, consistent with the agreements being entered into and the certificates
being delivered by the Selling Member, but subject to Section 9.06(f)(ii).
(h) Expenses.
The fees and expenses of the Selling Member incurred in connection with a Tag-along Sale and for the benefit of the Tag-along Member
(it being understood that costs incurred by or on behalf of a Selling Member for its sole benefit will not be considered to be for the
benefit of the Tag-along Member), to the extent not paid or reimbursed by the Company or the Proposed Transferee, shall be shared by
the Selling Member and all the participating Tag-along Member on a pro rata basis, based on the consideration received by each such Member;
provided, that the Tag-along Member shall not be obligated to make any out-of-pocket expenditure prior to the consummation of
the Tag-along Sale.
(i) Consummation
of Sale. The Selling Member shall have thirty (30) calendar days following the expiration of the Tag-along Period in which to consummate
the Tag-along Sale, on terms not more favorable to the Selling Member than those set forth in the Tag-along Notice; provided, however,
that deadlines for closing such a Tag-along Sale made pursuant to Section 9.05 will be made in accordance with Section 9.05(c)(i).
If at the end of such period the Selling Member has not completed the Tag-along Sale, the Selling Member may not then effect a Transfer
that is subject to this Section 9.06 without again fully complying with the provisions of this Section 9.06.
(j) Transfers
in Violation of the Tag-along Right. If the Selling Member sells or otherwise Transfers to the Proposed Transferee any of its Units
in breach of this Section 9.06, then the Tag-along Member shall have the right to sell to the Selling Member, and the Selling Member
undertakes to purchase from the Tag-along Member, the amount of Units that such Tag-along Member would have had the right to sell to
the Proposed Transferee pursuant to this Section 9.06, for a price and upon the terms and conditions on which the Proposed Transferee
bought such Units from the Selling Member, but without indemnity being granted by any Tag-along Member to the Selling Member; provided,
that nothing contained in this Section 9.06(j) shall preclude any Member from seeking alternative remedies against such Selling
Member as a result of its breach of this Section 9.06; and provided, further, that the Tag-along Member’s Units Transferred
pursuant to this Section 9.06(j) in connection with a Transfer pursuant to Section 9.05 will be limited to the extent
necessary to allow the BTOG Member to sell any Units required to cause the BTOG Ownership Government Determination to be reversed. The
Selling Member shall also reimburse each Tag-along Member for any and all reasonable and documented out-of-pocket fees and expenses,
including reasonable legal fees and expenses, incurred pursuant to the exercise or the attempted exercise of the Tag-along Member’s rights
under this Section 9.06(j).
ARTICLE X
Indemnification
Section 10.01 Indemnification.
(a) To
the fullest extent permitted under the Delaware Act, any Covered Person (as defined in section (c) below) shall be entitled to indemnification
and reimbursement of reasonable expenses from the Company for and against any loss, damage, claim, or expense (including reasonable attorneys’
fees) (collectively, “Losses”) whatsoever incurred by the Covered Person relating to or arising out of any act or omission
or alleged acts or omissions (whether or not constituting negligence) performed or omitted by any Covered Person on behalf of the Company;
provided, however, that (i) any indemnity under this Section 10.01 shall be provided out of and to the extent of the
Company assets only, and neither any Member or any other Person shall have any personal liability to contribute to such indemnity by
the Company; (ii) such Covered Person acted in good faith and in a manner believed by such Covered Person to be in, or not opposed
to, the best interests of the Company and, with respect to any criminal proceeding, had no reasonable cause to believe his conduct was
unlawful; and (iii) such Covered Person’s conduct did not constitute fraud or willful misconduct, in either case as determined by
a final, nonappealable order of a court of competent jurisdiction.
(b) Upon
receipt by the Company of a written undertaking by or on behalf of the Covered Person to repay such amounts if it is finally judicially
determined that the Covered Person is not entitled to indemnification under this Section 10.01, the Company shall advance, to the
extent reasonably required, each Covered Person for reasonable legal or other expenses (as incurred) of such Covered Person in connection
with investigating, preparing to defend, or defending any claim, lawsuit, or other proceeding relating to any Losses for which such Covered
Person may be indemnified pursuant to this Section 10.01.
(c) For
purposes of this Section 10.01, “Covered Person” means (i) each Member; (ii) each Manager and Officer
of the Company; and (iii) each officer, director, shareholder, partner, manager, member, Affiliate, employee, agent, or representative
of each Member and of each Manager.
Section 10.02 Survival.
The provisions of this ARTICLE X shall survive the dissolution, liquidation, winding up
and termination of the Company.
ARTICLE XI
Accounting; Tax Matters; Information Rights
Section 11.01 Financial
Statements. The Company shall furnish to each Member the following reports upon request:
(a) Annual
Financial Statements. As soon as available and no less than 90 days after the end of each Fiscal Year, audited consolidated balance
sheets of the Company as at the end of each such Fiscal Year and audited consolidated statements of income, cash flows and Members’ equity
for such Fiscal Year, in each case setting forth in comparative form the figures for the previous Fiscal Year, accompanied by the certification
of independent certified public accountants of recognized national standing selected by the Manager, certifying to the effect that, except
as set forth therein, such financial statements have been prepared in accordance with GAAP, applied on a basis consistent with prior
years, and fairly present in all material respects the financial condition of the Company as of the dates thereof and the results of
their operations and changes in their cash flows and Members’ equity for the periods covered thereby.
(b) Quarterly
Financial Statements. As soon as available, and in any event within 45 days after the end of each quarterly accounting period in
each Fiscal Year (other than the last fiscal quarter of the Fiscal Year), unaudited consolidated balance sheets of the Company as at
the end of each such fiscal quarter and for the current Fiscal Year to date and unaudited consolidated statements of income, cash flows
and Members’ equity for such fiscal quarter and for the current Fiscal Year to date, in each case setting forth in comparative form the
figures for the corresponding periods of the previous fiscal quarter, all in reasonable detail and all prepared in accordance with GAAP,
consistently applied (subject to normal year-end audit adjustments and the absence of notes thereto), and certified by the principal
financial or accounting officer of the Company.
Section 11.02 Inspection
Rights. Upon reasonable notice from a Member, the Company shall afford the Member reasonable
access during normal business hours to the properties and corporate, financial, and similar records, reports, and documents of the Company,
and shall permit the Member to examine any such documents and make copies thereof.
Section 11.03 Income
Tax Status. It is the intent of this Company and the Members that this Company shall be treated
as a partnership for U.S., federal, state and local income tax purposes. Neither the Company nor any Member shall make an election for
the Company to be classified as other than a partnership pursuant to Treasury Regulations Section 301.7701-3.
Section 11.04 Tax
Matters Representative.
(a) Appointment;
Removal. The Members hereby appoint the Manager as the “partnership representative” as provided in Section 6223(a) of
the Code (the “Tax Matters Representative”). The Tax Matters Representative can be removed at any time by a vote of
Members holding 80% of the outstanding Units, voting together as a single class, and shall resign if it is no longer a Member. In the
event of the resignation or removal of the Tax Matters Representative, the holders of a majority of the outstanding Units, voting together
as a single class, shall appoint a new Tax Matters Representative.
(b) Tax
Examinations and Audits. The Tax Matters Representative is authorized and required to represent the Company (at the Company’s expense)
in connection with all examinations of the Company’s affairs by Taxing Authorities, including resulting administrative and judicial proceedings,
and to expend Company funds for professional services and costs associated therewith. The Tax Matters Representative shall have sole
authority to act on behalf of the Company in any such examinations and any resulting administrative or judicial proceedings, and shall
have sole discretion to determine whether the Company (either on its own behalf or on behalf of the Members) will contest or continue
to contest any tax deficiencies assessed or proposed to be assessed by any taxing authority. The Tax Matters Representative shall promptly
notify the Members in writing of the commencement of any tax audit, upon receipt of a tax assessment or upon the receipt of a notice
of final partnership adjustment, and shall keep the Members reasonably informed of the status of any tax audit and resulting administrative
and judicial proceedings.
(c) US
Federal Tax Proceedings. To the extent permitted by applicable law and regulations, the Tax Matters Representative shall cause the
Company to annually elect out of the partnership audit procedures set forth in Subchapter C of Chapter 63 of the Code as amended by the
BBA (the “Revised Partnership Audit Rules”) pursuant to Code Section 6221(b). For any year in which applicable
law and regulations do not permit the Company to elect out of the Revised Partnership Audit Rules, then within forty-five (45) days of
any notice of final partnership adjustment, the Tax Matters Representative shall cause the Company to elect the alternative procedure
under Code Section 6226, and furnish to the Internal Revenue Service and each Member (including former Members) during the year
or years to which the notice of final partnership adjustment relates a statement of the Member’s share of any adjustment set forth in
the notice of final partnership adjustment.
(d) Tax
Returns and Tax Deficiencies. Each Member agrees that such Member shall not treat any Company item inconsistently on such Member’s
federal, state, foreign or other income tax return with the treatment of the item on the Company’s return. Any deficiency for taxes imposed
on any Member (including penalties, additions to tax or interest imposed with respect to such taxes and taxes imposed pursuant to Code
Section 6226) will be paid by such Member and if required to be paid (and actually paid) by the Company, will be recoverable from
such Member as provided in Section 7.04(b).
(e) Section 754
Election. The Tax Matters Representative will make an election under Code Section 754 if requested in writing by another Member.
(f) Indemnification.
The Company shall defend, indemnify, and hold harmless the Tax Matters Representative against any and all liabilities sustained as
a result of any act or decision concerning Company tax matters and within the scope of the Tax Matters Representative’s responsibilities,
so long as such act or decision was done or made in good faith and does not constitute gross negligence or willful misconduct.
(g) Survival.
The provisions of this Section 11.04 and the obligations of a Member or former Member pursuant to Section 11.04 shall survive
the termination, dissolution, liquidation, and winding up of the Company and the withdrawal of such Member from the Company or Transfer
of such Member’s Units.
Section 11.05 Tax
Returns. At the expense of the Company, the Manager (or any Officer that the Manager may designate
pursuant to Section 8.03(c)) shall endeavor to cause the preparation and timely filing (including extensions) of all tax returns
required to be filed by the Company pursuant to the Code as well as all other required tax returns in each jurisdiction in which the
Company owns property or does business. As soon as reasonably possible after the end of each Fiscal Year, the Manager or designated Officer
will cause to be delivered to each Person who was a Member at any time during such Fiscal Year, IRS Schedule K-1 to Form 1065
and such other information with respect to the Company as may be necessary for the preparation of such Person’s federal, state and local
income tax returns for such Fiscal Year.
Section 11.06 Company
Funds. All funds of the Company shall be deposited in its name, or in such name as may be designated
by the Manager, in such checking, savings or other accounts, or held in its name in the form of such other investments as shall be designated
by the Manager. The funds of the Company shall not be commingled with the funds of any other Person. All withdrawals of such deposits
or liquidations of such investments by the Company shall be made exclusively upon the signature or signatures of such Officer or Officers
as the Manager may designate.
Section 11.07 Budgets.
Not later than thirty (30) days prior to the commencement of each Fiscal quarter, the Manager
shall provide to the Members a quarterly operating budget (the “Budget”) for the Company in detail, for the upcoming
Fiscal quarter, including without limitation, capital and operating expense budgets, cash flow projections, and profit and loss projections,
Manager’s fees and personnel fees including discretionary bonuses, all itemized in reasonable detail.
ARTICLE XII
Dissolution and Liquidation
Section 12.01 Events
of Dissolution. The Company shall be dissolved and its affairs wound up only upon the occurrence
of any of the following events:
(a) An
election to dissolve the Company made by holders of at least 80% of the outstanding Units voting together as a single class;
(b) The
sale, exchange, involuntary conversion, or other disposition or Transfer of all or substantially all the assets of the Company; or
(c) The
entry of a decree of judicial dissolution under Section 18-802 of the Delaware Act.
Section 12.02 Effectiveness
of Dissolution. Dissolution of the Company shall be effective on the day on which the event
described in Section 12.01 occurs, but the Company shall not terminate until the winding up of the Company has been completed, the
assets of the Company have been Distributed as provided in Section 12.03 and the Certificate of Formation shall have been cancelled
as provided in Section 12.04.
Section 12.03 Liquidation.
If the Company is dissolved pursuant to Section 12.01, the Company shall be liquidated
and its business and affairs wound up in accordance with the Delaware Act and the following provisions:
(a) Liquidator.
The Manager, or another Person selected by the Manager, shall act as liquidator to wind up the Company (the “Liquidator”).
The Liquidator shall have full power and authority to sell, assign, and encumber any or all of the Company’s assets and to wind up and
liquidate the affairs of the Company in an orderly and business-like manner.
(b) Accounting.
As promptly as possible after dissolution and again after final liquidation, the Liquidator shall cause a proper accounting to be
made by a recognized firm of certified public accountants of the Company’s assets, liabilities and operations through the last day of
the calendar month in which the dissolution occurs or the final liquidation is completed, as applicable.
(c) Distribution
of Proceeds. The Liquidator shall liquidate the assets of the Company and Distribute the proceeds of such liquidation in the following
order of priority, unless otherwise required by mandatory provisions of Applicable Law:
(i) first,
to the payment of all of the Company’s debts and liabilities to its creditors (including Members, if applicable) and the expenses of
liquidation (including sales commissions incident to any sales of assets of the Company);
(ii) second,
to the establishment of and additions to reserves that are determined by the Liquidator to be reasonably necessary for any contingent
unforeseen liabilities or obligations of the Company; and
(iii) third,
to the Members in proportion to their positive Capital Account balances.
Section 12.04 Cancellation
of Certificate. Upon completion of the Distribution of the assets of the Company as provided
in Section 12.03(c) hereof, the Company shall be terminated and the Liquidator shall cause the cancellation of the Certificate
of Formation in the State of Delaware and of all qualifications and registrations of the Company as a foreign limited liability company
in jurisdictions other than the State of Delaware and shall take such other actions as may be necessary to terminate the Company.
ARTICLE XIII
Miscellaneous
Section 13.01 Notices.
All notices, requests, consents, claims, demands, waivers and other communications hereunder
shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when
received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile
or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next
Business Day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or
registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following
addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section 13.01):
| If to the Company: |
C/o BIT Origin Ltd.
27F, Samsung Hub
3 Church Street, Singapore
Telephone: (347) 556-4747
Attention: Chief Executive Officer
Email: ir@bitorigin.io |
| with a copy to: |
Ortoli Rosenstadt LLP
366 Madison Avenue, 3rd Floor
New York, NY 10017
Telephone: (212) 588-0022
Attention: Mengji “Jason” Ye
Email: jye@orllp.legal |
If to a Member or Manager, to such Member’s or
Manager’s respective mailing address as set forth on the Members Schedule or Managers Schedule, as applicable.
Section 13.02 Headings.
The headings in this Agreement are inserted for convenience or reference only and are in no
way intended to describe, interpret, define, or limit the scope, extent or intent of this Agreement or any provision of this Agreement.
Section 13.03 Severability.
If any term or provision of this Agreement is held to be invalid, illegal or unenforceable under
Applicable Law in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this
Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Section 13.04 Entire
Agreement. This Agreement, together with the Certificate of Formation and all related Exhibits
and Schedules, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained
herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written
and oral, with respect to such subject matter.
Section 13.05 Successors
and Assigns. Subject to the restrictions on Transfers set forth herein, this Agreement shall
be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors
and permitted assigns. This Agreement may not be assigned by any Member except as permitted by this Agreement and any assignment in violation
of this Agreement shall be null and void.
Section 13.06 No
Third-Party Beneficiaries. Except as provided in ARTICLE X, which shall be for the benefit
of and enforceable by Covered Persons as described therein, this Agreement is for the sole benefit of the parties hereto (and their respective
heirs, executors, administrators, successors and assigns) and nothing herein, express or implied, is intended to or shall confer upon
any other Person, including any creditor of the Company, any legal or equitable right, benefit or remedy of any nature whatsoever under
or by reason of this Agreement.
Section 13.07 Amendment.
No provision of this Agreement may be amended or modified except by an instrument in writing
executed by the Company and the Members holding at least 80% of the outstanding Units, voting together as a single class. Any such written
amendment or modification will be binding upon the Company and each Member. Notwithstanding the foregoing, amendments to the Members
Schedule and the Managers Schedule may be made by the Manager in accordance with Section 3.01 and Section 8.02(c).
Section 13.08 Waiver.
No waiver by any party of any of the provisions hereof shall be effective unless explicitly
set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect
of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether
occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising
from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
For the avoidance of doubt, nothing contained in this Section 13.08 shall diminish any waivers otherwise described in this Agreement.
Section 13.09 Governing
Law. All issues and questions concerning the application, construction, validity, interpretation
and enforcement of this Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware, without
giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that
would cause the application of laws of any jurisdiction other than those of the State of Delaware.
Section 13.10 Submission
to Jurisdiction. The parties hereby agree that any suit, action, or proceeding based on any
matter arising out of or in connection with, this Agreement or the transactions contemplated hereby, shall be brought in United States
District Court for the District of Delaware. Each of the parties hereby irrevocably consents to the jurisdiction of such courts (and
of the appropriate appellate courts therefrom) in any such suit, action, or proceeding.
Section 13.11 Waiver
of Jury Trial. Each party hereto hereby acknowledges and agrees that any controversy that may
arise under this Agreement is likely to involve complicated and difficult issues and, therefore, each such party irrevocably and unconditionally
waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions
contemplated hereby.
Section 13.12 Remedies
Cumulative. In the event of any actual or prospective breach or default by any party, the other
parties shall be entitled to equitable relief, including remedies in the nature of injunction and specific performance, awarded by a
court of competent jurisdiction (without being required to post a bond or other security or to establish any actual damages). In this
regard, the parties acknowledge and agree that they will be irreparably damaged in the event this Agreement is not specifically enforced,
since (among other things) the Units are not readily marketable. All remedies hereunder are cumulative and not exclusive, may be exercised
concurrently, and nothing herein shall be deemed to prohibit or limit any party from pursuing any other remedy or relief available at
law or in equity for any actual or prospective breach or default, including recovery of damages. In addition, the parties hereby waive
and renounce any defense to such equitable relief that an adequate remedy at law may exist.
Section 13.13 Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but
all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email
or other means of Electronic Transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this
Agreement.
Section 13.14 Spousal
Consent. Each Member who has a Spouse on the date of this Agreement shall cause such Member’s
Spouse to execute and deliver to the Company a spousal consent in the form of Exhibit B hereto (a “Spousal Consent”),
pursuant to which the Spouse acknowledges that they have read and understood the Agreement and agree to be bound by its terms and conditions.
If any Member should marry or engage in a Marital Relationship following the date of this Agreement, such Member shall cause their Spouse
to execute and deliver to the LLC a Spousal Consent within 30 days thereof.
[signature
page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as of the date first written above by their respective officers thereunto duly authorized.
| |
The Company:
Sonic Aupsice DC LLC
C/o BIT Origin Ltd.
27F, Samsung Hub
3 Church Street, Singapore
Telephone: (347) 556-4747
Attention: Chief Executive Officer
Email: ir@bitorigin.io |
| |
Member
BIT ORIGIN LTD.
27F, Samsung Hub
3 Church Street, Singapore
Telephone: (347) 556-4747
Attention: Chief Executive Officer
Email: ir@bitorigin.io |
| |
Member
[ ]
[ ]
Attention: [ ]
E-Mail: [ ] |
| |
Member
[ ]
[ ]
Attention: [ ]
E-Mail: [ ] |
Exhibit A
FORM OF JOINDER AGREEMENT
1. Reference
is hereby made to the Second Amended and Restated Limited Liability Company Agreement of Sonic Auspice DC LLC, dated December 8,
2023 as amended from time to time (the “LLC Agreement”), by and among the Members listed on the Members Schedule therein.
Pursuant to and in accordance with Section 5.01 of the LLC Agreement, the undersigned hereby acknowledges that it has received and
reviewed a complete copy of the LLC Agreement and agrees that upon execution of this Joinder, such Person shall become a party to the
LLC Agreement and shall be fully bound by, and subject to, all of the covenants, terms, and conditions of the LLC Agreement as though
an original party thereto and shall be deemed, and is hereby admitted as, a Member for all purposes thereof and entitled to all the rights
incidental thereto.
2. Capitalized
terms used herein without definition shall have the meanings ascribed thereto in the LLC Agreement.
[signature
page follows]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of [DATE].
| |
[NEW MEMBER] |
| |
|
|
| |
By:
|
|
| |
Name: |
|
| |
Title: |
|
Exhibit b
FORM OF SPOUSAL CONSENT
I, _______________, spouse of _______________,
acknowledge that I have read the Second Amended and Restated Limited Liability Company Agreement of Sonic Auspice DC LLC (the “Company”),
dated December 8, 2023 as amended from time to time (the “LLC Agreement”), by and among the Members listed on the
Members Schedule therein, to which this Consent is attached as Exhibit A (as the same may be amended or amended and restated from
time to time, the “Agreement”), and that I understand the contents of the Agreement. I am aware that my spouse is a
party to the Agreement and the Agreement contains provisions regarding the voting and transfer of Units (as defined in the Agreement)
of the Company which my spouse may own, including any interest I might have therein.
I hereby agree that I and any interest, including
any community property interest, that I may have in any Units of the Company subject to the Agreement shall be irrevocably bound by the
Agreement, including any restrictions on the transfer or other disposition of any Units or voting or other obligations as set forth in
the Agreement. I hereby appoint my spouse as my attorney-in-fact with respect to the exercise of any rights and obligations under the
Agreement.
This Consent shall be binding on my executors,
administrators, heirs and assigns. I agree to execute and deliver such documents as may be necessary to carry out the intent of the Agreement
and this Consent.
I am aware that the legal, financial and related
matters contained in the Agreement are complex and that I am free to seek independent professional guidance or counsel with respect to
this Consent. I have either sought such guidance or counsel or determined after reviewing the Agreement carefully that I will waive such
right. I am under no disability or impairment that affects my decision to sign this Consent and I knowingly and voluntarily intend to
be legally bound by this Consent.
Dated as of __________
[STATE OF___________________)
ss.:
COUNTY OF ______________________)
On the __________day of ___________________, ____, before me personally
came ________________________________, to me known and known to me to be the person described in and who executed the foregoing instrument,
and he/she acknowledged to me that he/she executed the same.
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Exhibit 99.1
Bit Origin Ltd Secures $6.74 Million Investment
to Build a New Crypto Mining Data Center in the U.S.
| · | The
investment will be allocated for the construction of a brand new 25 MW crypto mining data
center in Cheyenne, Wyoming. |
| · | The
management anticipates the data center's completion in early Q2 2024, providing the capacity
to accommodate approximately 4,480 to 8,400 bitcoin miners. |
| · | The
new cypto mining center foresees substantial revenue and cash flow generation for Bit Origin,
starting in the latter half of 2024. |
New York, December 11, 2023 (GLOBE NEWSWIRE)
– Bit Origin Ltd (NASDAQ: BTOG) ("Bit Origin" or the "Company"), an emerging growth company engaged in the
crypto mining business with diversified expansion strategies, today announces it has entered into a securities purchase agreement to
sell up to $24.74 million of convertible notes (“Notes”) and warrants to U.S. based institutional investor ATW Digital Asset
Opportunities LLC (“ATW”). The initial commitment of $6.74 million (prior to fees and offering expenses) will fund the construction
of a brand-new 25MW cryptocurrency mining data center, named as Auspice (referred to as "the Project" or "Project Auspice").
This facility is situated in Cheyenne, Wyoming, USA. Management anticipates that the project will commence producing substantial revenue
and cash flow for the company starting in the second half of 2024.
Lucas Wang, Chairman and Chief Executive Officer
of Bit Origin commented, “We are very pleased to partner with ATW again, and this new financing is a critical component to fund
our new Auspice Project. We are excited that the Auspice Project will adopt eco-friendly immersion cooling technology and we are honoured
to have ATW to support our vision.”
The Project Auspice is a 25 MW crypto mining
data center located in Cheyenne Wyoming, where electricity supply is abundant as well as stable and the weather condition is favourable
to crypto mining. The Company owns 55% interests of the Project Auspice with the remaining interests owned by ATW and certain other investor.
The Project adopts advanced immersion cooling technology, which has low noise, low energy consumption and strong heat dissipation capacity.
The Project Auspice will also have a professional team to provide operation and maintenance technical services to ensure the stable operation
of the data center. The Company has finalized the budget preparation, project plans, and design drawings of the project. The Company
expects to complete it in early Q2 2024. Upon completion, the project can host around 4,480 to 8,400 bitcoin miners depending on the
types of the miners.
About Bit Origin Ltd
Bit Origin Ltd, formerly
known as China Xiangtai Food Co., Ltd., is an emerging growth company operating in the United States and engaged in the cryptocurrency
mining business. The Company is also actively deploying blockchain technologies alongside diversified expansion strategies. For more
information, please visit https://bitorigin.io.
About ATW Partners LLC
ATW Partners is a New
York-based hybrid venture capital/private equity firm that focuses on investing in high quality companies at various stages. Investors
choose ATW for our unique and disciplined investment process targeting high risk-adjusted returns. We invest in debt and equity and offer
investment flexibility to our portfolio companies with tailored investment structure solutions.
Safe Harbor Statement
This announcement
contains forward-looking statements within the meaning of the safe harbor provisions of the Private Securities Litigation Reform Act
of 1995. All statements other than statements of historical fact in this announcement are forward-looking statements. These forward-looking
statements involve known and unknown risks and uncertainties and are based on current expectations and projections about future events
and financial trends that the Company believes may affect its financial condition, results of operations, business strategy, and financial
needs. Investors can identify these forward-looking statements by words or phrases such as "may," "will," "expect,"
"anticipate," "aim," "estimate," "intend," "plan," "believe," "potential,"
"continue," "is/are likely to" or other similar expressions. The Company undertakes no obligation to update forward-looking
statements to reflect subsequent occurring events or circumstances or changes in its expectations, except as may be required by law.
Although the Company believes that the expectations expressed in these forward-looking statements are reasonable, it cannot assure you
that such expectations will turn out to be correct, and the Company cautions investors that actual results may differ materially from
the anticipated results.
Company Contact
Bit Origin Ltd
Mr. Lucas
Wang, Chairman and Chief Executive Officer
Email: ir@bitorigin.io
To keep updated on Bit Origin’s news releases and SEC filings,
please subscribe to email alerts at https://bitorigin.io/contact
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