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 January 2024
Commission File Number: 001-38851
POWERBRIDGE TECHNOLOGIES CO., LTD.
Advanced Business Park, 9th Fl, Bldg C2,
29 Lanwan Lane, Hightech District,
Zhuhai, Guangdong 519080, China
(Address of Principal Executive Office)
Indicate by check mark whether the registrant
files or will file annual reports under cover of Form 20-F or Form 40-F.
Form 20-F ☒ Form 40-F ☐
CONTENTS
Entry into a series of Material Definitive Agreements
On November 24, 2023, Powerbridge Technologies Co., Ltd. (the “Company”)
entered into a series of securities purchase agreements (the “SPAs”) separately with certain individual investors, Rong Li,
Xiaohong Guo, Yuhong Xu, Jian Zeng, Jie Ding, Mengmeng Zhang, Ping Tang, Xiaochun Yang, Pang Kai Xin, Yumei Xu, Jing Zhou and Yongheng
Wu (the “Purchasers”). Pursuant to the SPAs, the Company agreed to sell the Purchasers an aggregate of 130,463,140 Class A
ordinary shares, $0.40 par value per share, of the Company for an aggregate purchase price of $40.0 million, with an offering price of
approximately $0.3 per share (the “Offering”). The net proceeds to the Company from such Offering will be approximately $40.0
million. The offering was closed on December 29, 2023 (the “Closing”).
The Class A ordinary shares were offered, and will be issued, pursuant
to the prospectus included in the Company’s Registration Statement on Form F-3 (Registration No. 333-253395), filed with the Securities
and Exchange Commission (the “Commission”) on February 23, 2021, and a prospectus supplement to be filed with the Commission
within 30 days after the date of Closing.
The form of the SPAs is filed as Exhibit 99.1 to this Current Report
on Form 6-K. The foregoing is only a brief description of the material terms of the SPAs, and does not purport to be a complete description
of the rights and obligations of the parties thereunder and is qualified in its entirety by reference to such exhibits.
Corporate Governance
Pursuant to the home country rule exemption set forth under Nasdaq
Listing Rule 5615, the board of directors of the Company elects to follow the Company’s home country rules for exemption from the
requirement to obtain shareholder approval for issuance of securities, other than in a public offering, equal to 20% or more of the outstanding
share capital or the voting power outstanding at a price that is less than the minimum price defined therein under Nasdaq Listing Rule
5635(d).
Other than those described above and disclosed in the Company’s
annual report on Form 20-F, there are no significant differences between the Company’s corporate governance practices and those
followed by U.S. domestic companies under Nasdaq Capital Market corporate governance listing standards.
EXHIBIT INDEX
SIGNATURE
Pursuant to the requirements of the Securities
and Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: January 25, 2024
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POWERBRIDGE TECHNOLOGIES CO., LTD. |
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By: |
/s/ Stewart Lor |
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Stewart Lor |
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Chief Executive Officer |
2
Exhibit 99.1
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT (the “Agreement”) is
made as of November 24, 2023 by and among Powerbridge Technologies Co. Ltd., a Cayman Islands exempted company (the “Company”),
and [Name of the Purchaser] (the “Purchaser”).
WHEREAS, subject to the terms and conditions set forth in this Agreement
and pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “Securities Act”),
the Company desires to issue and sell to the Purchaser, and the Purchaser desires to purchase from the Company, securities of the Company
as more fully described in this Agreement.
NOW THEREFORE, in consideration of the mutual agreements, representations,
warranties and covenants herein contained, as well as other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged and accepted, and intending to be legally bound hereby, the parties hereto agree as follows:
| 1. | Definitions. As used in this Agreement, the
following terms shall have the following respective meanings: |
| (a) | “Affiliate” means, with respect to any Person, any
other Person directly or indirectly controlling, controlled by or under common control with
such Person. For purposes of this definition, “control” when used with respect
to any Person means the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract or otherwise,
and the terms “controlling” and “controlled” have correlative meanings. |
| (b) | “Company Intellectual Property” shall mean all of
the Intellectual Property owned by the Company or any of its Subsidiaries. |
| (c) | “Company Options” shall mean options to purchase Ordinary
Share under any of the Company Stock Option Plans. |
| (d) | “Company Stock Option Plan” shall mean each stock
option plan, stock award plan, stock appreciation right plan, phantom stock plan, stock option,
other equity or equity-based compensation plan, equity or other equity based award to any
employee, whether payable in cash, shares or otherwise (to the extent not issued pursuant
to any of the foregoing plans), or other plan or contract of any nature with any employee
pursuant to which any stock, option, warrant or other right to purchase or acquire share
capital of the Company or right to payment based on the value of Company share capital has
been granted or otherwise issued. |
| (e) | “Exchange Act” shall mean the U.S. Securities Exchange
Act of 1934, as amended. |
| (f) | “FCPA” shall mean the Foreign Corrupt Practices Act
of 1977, as amended. |
| (g) | “GAAP” shall mean United States generally accepted
accounting principles. |
| (h) | “Governmental Entity” shall mean any national, provincial,
state, municipal, local government, any instrumentality, subdivision, court, administrative
agency or commission or other governmental authority or instrumentality, or any quasi-governmental
or private body exercising any regulatory, taxing, importing or other governmental or quasi-governmental
authority. |
| (i) | “Intellectual Property” shall mean the rights associated
with or arising under any of the following anywhere in the world: (i) patents and applications
therefor; (ii) copyrights, copyright registrations and applications therefor, and all other
corresponding rights in works of authorship, however denominated; (iii) rights in industrial
designs and any registrations and applications therefor; (iv) trademark rights and corresponding
rights in trade names, logos and service marks, trademarks or service marks, and registrations
and applications therefor; (v) trade secrets rights and corresponding rights in confidential
business and technical information and know-how (“Trade Secrets”); and (vi) any
similar or equivalent rights to any of the foregoing anywhere in the world (as applicable). |
| (j) | “Knowledge” of any Person that is not an individual
means the knowledge of such Person’s directors and officers. |
| (k) | “Legal Requirements” shall mean any national, provincial,
state, municipal, local or other law, statute, constitution, principle of common law, resolution,
ordinance, code, order, edict, decree, rule, regulation, ruling or requirement issued, enacted,
adopted, promulgated, implemented or otherwise put into effect by or under the authority
of any Governmental Entity. |
| (l) | “Lien” shall mean any pledge, claim, lien, charge,
encumbrance, option and security interest of any kind or nature whatsoever. |
| (m) | “Market Price” means 70% multiplied by the lowest
daily VWAPs during the twenty (20) Trading Days preceding the date of this Agreement. |
| (n) | “Material Adverse Effect” shall mean, when used in
connection with an entity, any change, event, violation, inaccuracy, circumstance or effect
(any such item, an “Effect”), that could have or reasonably be expected to result
in: (i) a material adverse effect on the legality, validity or enforceability of any Transaction
Document, (ii) a material adverse effect on the results of operations, assets, business,
prospects or condition (financial or otherwise) of the Company and the Subsidiaries, taken
as a whole, or (iii) a material adverse effect on the Company’s ability to perform
in any material respect on a timely basis its obligations under any Transaction Document. |
| (o) | “Nasdaq” shall mean the Nasdaq Capital Market. |
| (p) | “Ordinary Share” shall mean the ordinary shares of
the Company, par value US$0.40 per share. |
| (q) | “Permits” shall mean all permits, licenses, variances,
exemptions, orders and approvals from Governmental Entities. |
| (r) | “Person” shall mean any individual, corporation (including
any non-profit corporation), general partnership, limited partnership, limited liability
partnership, joint venture, estate, trust, company (including any limited liability company
or joint stock company), firm or other enterprise, association, organization, entity or Governmental
Entity. |
| (s) | “PRC” shall mean the People’s Republic of China
and solely for the purposes of this Agreement, exclude Hong Kong SAR, Macao SAR and Taiwan. |
| (t) | “Prospectus” means the final prospectus filed for
the Registration Statement. |
| (u) | “Prospectus Supplement” means the supplement to the
Prospectus complying with Rule 424(b) of the Securities Act that is filed with the SEC and
delivered by the Company to the Purchaser at the Closing. |
| (v) | “Registration Statement” means the effective registration
statement on Form F-3 with SEC (file No. 333-253395), which registers the sale of the Securities
to the Purchasers. |
| (w) | “Rule 424” means Rule 424 promulgated by the SEC pursuant
to the Securities Act, as such Rule may be amended or interpreted from time to time, or any
similar rule or regulation hereafter adopted by the SEC having substantially the same purpose
and effect as such Rule. |
| (x) | “SEC” shall mean the U.S. Securities and Exchange
Commission. |
| (y) | “Securities” means the Ordinary Shares. |
| (z) | “Securities Act” shall mean the Securities Act of
1933, as amended. |
| (aa) | “Subsidiaries” shall mean, when used with respect
to any party, any corporation or other organization, whether incorporated or unincorporated,
at least a majority of the securities or other interests of which having by their terms ordinary
voting power to elect a majority of the board of directors or others performing similar functions
with respect to such corporation or other organization is directly or indirectly owned or
controlled by such party or by any one or more of its Subsidiaries, or by such party and
one or more of its Subsidiaries. For the avoidance of doubt, the Subsidiaries of the Company
shall include any variable interest entity over which the Company or any of its Subsidiaries
effects control pursuant to contractual arrangements and which is consolidated with the Company
in accordance with generally accepted accounting principles applicable to the Company. |
| (bb) | “Trading Day” means any day on which the Company’s
principal market is open for trading. |
| (cc) | “VWAP” means the volume weighted average price of
the Ordinary Shares on the principal market for a particular Trading Day or set of Trading
Days, as the case may be, as reported by Bloomberg. |
| (a) | Purchase and Sale of the Purchase Shares. At the Closing, the
Company hereby agrees to sell to the Purchaser, and the Purchaser hereby agrees to purchase
[number of shares] shares of the ordinary shares of the Company, with a par value
of US$0.40 each (the “Purchase Shares”), for a purchase price per share equal
to the lesser of (a) the closing share price of the Company’s Ordinary Shares on Nasdaq
of the day preceding the date of this Agreement, and (b) the Market Price. |
| (b) | Closing. At the closing (the “Closing”), the Company
shall issue and sell the Purchase Shares to the Purchaser. The Closing shall take place remotely
through the exchange of signature pages and documents electronically or by facsimile. The
Closing shall take place on the date of this Agreement or a later date as mutually agreed
upon by all parties. In connection with the Closing, the Company shall issue the Purchase
Shares to the Purchaser; the Purchaser shall purchase from the Company the Purchase Shares
and, upon receipt of such Purchase Shares, shall pay to the Company the purchase price in
the aggregate of US$[total purchase price]. The Purchaser shall pay the aggregate
purchase price to the Company or its designee(s), by wire transfer, on the date of Closing
or a later date as mutually agreed upon by all parties. Upon issuance and payment therefor
as provided herein, such Purchase Shares shall be validly issued and fully paid and non-assessable. |
| (c) | Company Deliveries. At the Closing, the Company shall deliver
to the Purchaser the following: |
| (i) | this Agreement duly executed by the Company; |
| (ii) | a book-entry account statement representing the Purchase Shares
being purchased by such Purchaser at the Closing; |
| (iii) | a final and complete form of the Prospectus Supplement to be
filed pursuant to Rule 424(b). |
| (d) | Purchaser Deliveries. At the Closing, the Purchaser shall deliver
to the Company the following: |
| (i) | this Agreement duly executed by such Purchaser; |
| (ii) | the purchase price for the Purchase Shares, made by wire transfer
of U.S. Dollars to a bank account of the Company in accordance with the Company’s wire
instructions. |
| 3. | Representations and Warranties of the Company. Except
as set forth in the Company SEC filings, the Company hereby represents and warrants to the
Purchaser as follows: |
| (a) | Organization; Good Standing; Qualification; Subsidiaries.
The Company and each of its Subsidiaries is a corporation or other organization duly organized, validly existing and in good standing
(when such concept is applicable) under the laws of the jurisdiction of its incorporation or organization, has the requisite power and
authority to own, lease and operate its properties and to carry on its business as now being conducted as described in the Company SEC
filings. The Company is duly qualified and in good standing to do business in each jurisdiction in which the nature of its business or
the ownership or leasing of its properties makes such qualification necessary, other than in such jurisdictions where the failure to
be so qualified and in good standing, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect
on the Company. The Company owns, directly or indirectly, all of the share capital or other equity interests of each Subsidiary free
and clear of any Liens, and all of the issued and outstanding shares of share capital of each Subsidiary are validly issued and are fully
paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase securities. |
| (i) | Share capital. (i) As of the date hereof, the authorized share
capital of the Company consists of 500,000,000 Ordinary Shares with a par value of US$0.40
each, of which as of the date hereof, 5,440,429 Ordinary Shares are issued and outstanding.
All of the outstanding shares of the share capital of Company are duly authorized and validly
issued, fully paid and nonassessable and not subject to any preemptive rights. |
| (ii) | Equity Incentive Plan. As of the date hereof: 50,542 Ordinary
Shares are reserved for future issuance under the Company Stock Option Plan. All Ordinary
Shares subject to issuance under the Company Stock Option Plans, upon issuance on the terms
and conditions specified in the instruments pursuant to which they are issuable (including
payment of the exercise price therefor), would be duly authorized and validly issued, fully
paid and nonassessable. Except for outstanding Company Options, there are no outstanding
or authorized restricted stock unit, stock appreciation, phantom stock, profit participation
or other forms of stock-based awards with respect to the Company. |
| (iii) | Other Securities. All outstanding Ordinary Shares, all outstanding
Company Options, and all outstanding shares of share capital of each Subsidiary of the Company
have been issued and granted in compliance in all material respects with all applicable securities
laws and other material Legal Requirements. |
| (c) | Authorization; Non-Contravention. |
| (i) | Authorization. All corporate action on the part of the Company
necessary for the authorization, execution and delivery of this Agreement, the performance
of all obligations of the Company hereunder, and the authorization, issuance, sale and delivery
of the Purchase Shares has been taken prior to the date hereof, and this Agreement, when
validly executed by the Purchaser, constitutes a valid and legally binding obligation of
the Company, enforceable in accordance with its terms, except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of general application
affecting the enforcement of creditors’ rights generally, (ii) as limited by laws relating
to the availability of specific performance, injunctive relief or other equitable remedies,
and (iii) to the extent the indemnification provisions contained therein may be limited by
applicable federal or state securities laws. |
| (ii) | Non-Contravention. The execution, delivery and performance by
the Company of this Agreement and the consummation by the Company of the transactions contemplated
hereby and thereby (including, without limitation, the issuance of the Purchase Shares) will
not (i) result in a violation of the Company’s constitutional documents (each as amended
to date), (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
the Company or any Subsidiary is a party, or (iii) subject to the consents set forth in Section
3(f), result in a violation of any Legal Requirement applicable to the Company or by
which any property or asset of the Company or any Subsidiary is bound or affected. |
| (d) | SEC Filings; Financial Statements; Internal Controls. |
| (i) | SEC Filings. As of the date hereof, the Company has filed all the
registration statements, prospectuses, reports, schedules, forms, statements and other documents
(including exhibits and all other information incorporated by reference) required to be filed
by it with the SEC. All such registration statements, prospectuses, reports, schedules, forms,
statements and other documents in the form filed with the SEC have been made available to
the Purchaser or are publicly available in the Interactive Data Electronic Applications database
of the SEC. All such required registration statements, prospectuses, reports, schedules,
forms, statements and other documents, as amended, are referred to herein as the “Company
SEC filings.” As of their respective dates (or if subsequently amended or supplemented,
on the date of such amendment or supplement), the Company SEC filings (i) were prepared in
accordance and complied in all material respects with the requirements of the Securities
Act or the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder
applicable to such Company SEC filings, and (ii) did not contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading. None of the Company’s Subsidiaries is required to file any
forms, reports or other documents with the SEC. No executive officer of the Company has failed
to make the certifications required of him or her under Section 302 or 906 of the Sarbanes-Oxley
Act of 2002, as amended, and the rules and regulations promulgated thereunder, with respect
to any Company SEC Filings. Neither the Company nor any of its executive officers has received
notice from any Governmental Entity challenging or questioning the accuracy, completeness,
form or manner of filing of such certifications. |
| (ii) | Financial Statements. Each of the consolidated financial statements
(including, in each case, any related notes thereto) contained in the Company SEC filings
(the “Company Financials”): (i) complied in all material respects with the published
rules and regulations of the SEC with respect thereto; (ii) was prepared in accordance with
GAAP applied on a consistent basis throughout the periods involved (except as may be indicated
in the notes thereto or, in the case of unaudited interim financial statements, for normal
and recurring year-end adjustments and as may be permitted by the SEC on Form 10-K, 20-F,
6-K or any successor or like form under the Exchange Act); and (iii) fairly presented in
all material respects the consolidated financial position of the Company and its consolidated
Subsidiaries as at the respective dates thereof and the consolidated results of the Company’s
operations and cash flows for the periods indicated. |
| (iii) | Sarbanes-Oxley and Internal Controls. To the Knowledge of the
Company, the Company and the Subsidiaries are in compliance with any and all applicable requirements
of the Sarbanes-Oxley Act of 2002 that are effective as of the date hereof, and any and all
applicable rules and regulations promulgated by the SEC thereunder that are effective as
of the date hereof and as of the Closing. The Company has established and maintains, adheres
to and enforces a system of internal accounting controls which are effective in providing
reasonable assurance regarding the reliability of financial reporting and the preparation
of financial statements in accordance with GAAP, including policies and procedures that (i)
require the maintenance of records that in reasonable detail accurately and fairly reflect
the transactions and dispositions of the assets of the Company and its Subsidiaries, (ii)
provide reasonable assurance that transactions are recorded as necessary to permit preparation
of financial statements in accordance with GAAP, and that receipts and expenditures of the
Company and its Subsidiaries are being made only in accordance with appropriate authorizations
of management and the board of directors of the Company (the “Board”), and (iii)
provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition,
use or disposition of the assets of the Company and its Subsidiaries. Neither the Company
nor, to the Knowledge of the Company, the Company’s independent auditors, has identified
or been made aware of (A) any significant deficiency or material weakness, in each case which
has not been subsequently remediated, in the system of internal accounting controls utilized
by the Company and its Subsidiaries, taken as a whole, or (B) any fraud that involves the
Company’s management or other employees who have a role in the preparation of financial
statements or the internal accounting controls utilized by the Company. |
| (e) | Governmental Consents. No consent, approval, order or authorization
of, or registration, declaration or filing with any Governmental Entity is required to be obtained or made by the Company in connection
with the execution and delivery of this Agreement and the transactions contemplated hereby, except for those that have been obtained
on or prior to the date hereof. |
| (f) | Nasdaq. The Ordinary Shares are listed on Nasdaq. There are
no proceedings to revoke or suspend such listing and the Company has not received any notice from Nasdaq, nor does the Company have Knowledge
of any reason that the Company does not or will not meet the listing or maintenance requirements for continuing listing on Nasdaq. |
| (g) | Valid Issuance of Securities. The Purchase Shares have been
duly authorized, and when issued, sold and delivered in accordance with the terms of this Agreement and upon payment of the purchase
price therefor, will be validly issued, fully paid and nonassessable, and free and clear of all Liens (other than restrictions on transfer
imposed by U.S. law (both state and federal) or other applicable securities laws). The Company has reserved from its duly authorized
share capital the maximum number of Ordinary Shares issuable pursuant to this Agreement. |
| (h) | Offering. The Company has prepared and filed the Registration
Statement in conformity with the requirements of the Securities Act, which became effective on February 23, 2021, including the Prospectus,
and such amendments and supplements thereto as may have been required to the date of this Agreement. The Registration Statement is effective
under the Securities Act and no stop order preventing or suspending the effectiveness of the Registration Statement or suspending or
preventing the use of the Prospectus has been issued by the SEC and no proceedings for that purpose have been instituted or, to the knowledge
of the Company, are threatened by the SEC. The Company, if required by the rules and regulations of the SEC, shall file the Prospectus
Supplement with the SEC pursuant to Rule 424(b). The Company was at the time of the filing of the Registration Statement eligible to
use Form F-3. The Company is eligible to use Form F-3 under the Securities Act and it meets the transaction requirements with respect
to the aggregate market value of securities being sold pursuant to this offering. |
| (i) | No Material Adverse Effect. Since June 30, 2023, no event
or circumstance has occurred that, individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse
Effect on the Company. |
| (j) | Intellectual Property. The Company and its Subsidiaries own
or possess adequate rights or licenses to use all material trademarks, trade names, service marks, service mark registrations, service
names, patents, patent rights, copyrights, inventions, licenses, approvals, governmental authorizations, trade secrets and other intellectual
property rights (collectively, “Intellectual Property”) necessary to conduct their respective businesses as now conducted. |
| (i) | The Company and each of its Subsidiaries has taken reasonable steps
consistent with applicable industry practice to protect and preserve the confidentiality
of material confidential information that they wish to, or are obligated by third parties
to, protect as Trade Secrets, and, to the Knowledge of the Company, there is no misappropriation
from the Company of such Trade Secrets by any Person, except where such misappropriation
could not reasonably be expected to have a Material Adverse Effect on the Company. |
| (ii) | To the Knowledge of the Company, none of the Company or any of
its Subsidiaries or any of its or their current products or services is infringing upon or
otherwise violating the Intellectual Property of any third party, except where such infringement
could not reasonably be expected to have a Material Adverse Effect on the Company. |
| (iii) | As of the date of this Agreement, the Company has not received
written notice of any suit, claim, action, investigation or proceeding made, conducted or
brought by a third party that has been served upon or, to the Knowledge of the Company, filed
or threatened in writing with respect to any alleged infringement or other violation in any
material respect by the Company or any of its Subsidiaries or any of its or their current
products or services or other operation of the Company’s or its Subsidiaries’
business of the Intellectual Property of such third party. As of the date of this Agreement,
to the Knowledge of the Company, there is no pending or threatened claim challenging the
validity or enforceability of, or contesting the Company’s or any of its Subsidiaries’
rights with respect to, any of the material Company Intellectual Property. |
| (iv) | The execution and delivery of this Agreement by the Company, and
the consummation of the transactions contemplated hereby, will not result in (i) the Company
or its Subsidiaries granting to any third party any rights or licenses to any Company Intellectual
Property, (ii) any right of termination or cancellation under any Company Intellectual Property
Agreement, or (iii) the imposition of any Lien on any Company Intellectual Property, except
where any of the foregoing (in clauses (i) through (iii)) would not have a Company Material
Adverse Effect. |
| (i) | Compliance. Neither the Company nor any of its Subsidiaries is
in conflict with, or in default or in violation of any Legal Requirement applicable to the
Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries or
any of their respective businesses or properties is bound or affected, except for conflicts,
violations and defaults that would not have a Material Adverse Effect on the Company. As
of the date hereof, no material investigation or review by any Governmental Entity is pending
or, to the Knowledge of the Company, has been threatened in a writing delivered to the Company
or any of its Subsidiaries, against the Company or any of its Subsidiaries. There is no judgment,
injunction, order or decree binding upon the Company or any of its Subsidiaries which has
or would reasonably be expected to have a Material Adverse Effect on the Company. |
| (ii) | Permits. The Company and its Subsidiaries hold, to the extent
legally required, all Permits that are required for the operation of the business of the
Company, as currently conducted, the failure to hold which would reasonably be expected to
have a Material Adverse Effect on the Company (collectively, “Company Permits”).
As of the date hereof, no suspension or cancellation of any of the Company Permits is pending
or, to the Knowledge of Company, threatened. The Company and its Subsidiaries comply in all
material respects with the terms of the Company Permits. |
| (l) | Litigation. As of the date hereof, there are no claims, suits,
actions or proceedings or, to the Knowledge of the Company, pending or threatened in writing against the Company or any of its Subsidiaries,
before any court, governmental department, commission, agency, instrumentality or authority, or any arbitrator that seeks to restrain
or enjoin the consummation of the transactions contemplated hereby or which would reasonably be expected, either singularly or in the
aggregate with all such claims, actions or proceedings, to have a Material Adverse Effect on the Company. |
| (m) | Foreign Corrupt Practices. Neither the Company nor any Subsidiary,
nor to the Knowledge of the Company or any Subsidiary, any agent or other Person acting on behalf of the Company or any Subsidiary, has
(i) directly or indirectly, used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses related to foreign
or domestic political activity, (ii) made any unlawful payment to foreign or domestic government officials or employees or to any foreign
or domestic political parties or campaigns from corporate funds, (iii) failed to disclose fully any contribution made by the Company
or any Subsidiary (or made by any Person acting on its behalf of which the Company is aware) which is in violation of law, or (iv) violated
in any material respect any provision of FCPA. |
| (n) | Foreign Private Issuer. The Company is a “foreign private issuer”
within the meaning of Rule 405 under the Securities Act. |
| 4. | Representations, Warranties and Covenants of the Purchaser.
The Purchaser represents and warrants to the Company as follows: |
| (a) | Authorization. All corporate action on the part of the Purchaser
necessary for the authorization, execution and delivery of this Agreement, and the performance
of all obligations of the Purchaser hereunder, has been taken prior to the date hereof, and
this Agreement, when validly executed by the Company, constitutes a valid and legally binding
obligation of the Purchaser, enforceable in accordance with its terms, except (i) as limited
by applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting the enforcement of creditors’ rights generally, and (ii) as limited
by laws relating to the availability of specific performance, injunctive relief or other
equitable remedies. |
| (b) | Purchase Entirely for Own Account. The Purchase Shares to be purchased
by the Purchaser will be acquired for investment for the Purchaser’s own account, and
not as a nominee or agent and the Purchaser has no present intention of selling, granting
any participation in, or otherwise distributing the same. The Purchaser is not a party to
any contract, understanding, agreement or arrangement with any person to sell, transfer or
otherwise dispose of any of the Purchase Shares purchased by it. |
| (c) | Receipt of Information. The Purchaser has had an opportunity to
ask questions of, and receive answers from, the Company regarding the terms and conditions
of the issuance and sale of the Purchase Shares, and the business, properties, prospects
and financial condition of the Company, and to obtain additional information (to the extent
the Company possessed such information or could acquire such information without unreasonable
effort or expense) necessary to verify the accuracy of any information furnished to it or
to which it had access. The foregoing, however, does not limit or modify the representations
and warranties of the Company in Section 3 of this Agreement or the right of the Purchaser
to rely thereon. The Purchaser acknowledges and understands that no Person other than the
Company has been authorized to give any representations not contained in this Agreement in
connection with the issuance and sale of the Purchase Shares and, if given or made, such
information or representation must not be relied upon as having been authorized by the Company. |
| (d) | Governmental Consents. No consent, approval, order or authorization
of, or registration, declaration or filing with, any Governmental Entity is required to be
obtained or made by the Purchaser in connection with the execution and delivery of this Agreement
and the transactions contemplated hereby. |
| (e) | Organization. The Purchaser is a limited liability company duly
organized and validly existing in good standing under the laws of the jurisdiction in which
it is organized, and has the requisite organizational power and authority to own its properties
and to carry on its business as now being conducted. |
| 5. | Conditions Precedent to Closing. |
| (a) | Conditions to the Obligation of the Purchaser to Consummate the
Closing. The obligation of the Purchaser to consummate the Closing and to purchase and pay
for the Purchase Shares pursuant to this Agreement and the Prospectus and the Prospectus
Supplement is subject to the satisfaction of the following conditions precedent: |
| (i) | Representations and Warranties; Covenants. |
| (1) | Each of the representations and warranties of the Company in Section
3 shall be true and correct in all respects as of the date of this Agreement and as of the
date of the Closing as though made at that time. |
| (2) | The Company shall have performed, satisfied and complied in all material
respects with the covenants, agreements and conditions required by this Agreement prior to
the date of Closing. |
| (ii) | Qualifications. All authorizations, approvals or permits, if any,
of any Governmental Entity that are required in connection with the lawful issuance, sale
and purchase of the Purchase Shares, and the purchase and the procurement of foreign exchange
for payment of the Purchase Price, pursuant to this Agreement shall have been duly obtained
and effective as of the Closing. |
| (iii) | A final and complete form of the Prospectus Supplement, to be
used in connection with the issuance and sale of the Purchase Shares to the Purchaser, shall
have been delivered to the Purchaser and to be filed by the Company within thirty (30) days
after the date of Closing pursuant to Rule 424(b). |
| (b) | Conditions to the Obligation of the Company to Consummate the
Closing. The obligation of the Company to consummate the Closing and to issue and sell the
Purchase Shares to the Purchaser at the Closing is subject to the satisfaction of the following
conditions precedent: |
| (i) | Representations and Warranties; Covenants. |
| (1) | Each of the representations and warranties of the Purchaser in Section
4 shall be true and correct in all respects as of the date of this Agreement and as
of the date of the Closing as though made at that time. |
| (2) | The Purchaser shall have performed, satisfied and complied in all
material respects with the covenants, agreements and conditions required by this Agreement
prior to the date of Closing. |
| (ii) | Qualifications. All authorizations, approvals or permits, if any,
of any Governmental Entity that are required in connection with the lawful issuance and sale
of the Purchase Shares pursuant to this Agreement shall be duly obtained and effective as
of the Closing. |
| 6. | Miscellaneous Provisions. |
| (a) | Publicity. None of the parties to this Agreement shall make, issue,
or release any announcement, whether to the public generally, or to any of its suppliers
or customers, with respect to this Agreement or the transactions provided for herein, or
make any statement or acknowledgment of the existence of, or reveal the status of, this Agreement
or the transactions provided for herein, without the prior consent of the other parties,
which shall not be unreasonably withheld or delayed, provided, that nothing in this Section
6(a) shall prevent any of the parties hereto from making such public announcements as
it may consider necessary in order to satisfy any Legal Requirements applicable to it, but
to the extent not inconsistent with such Legal Requirements, it shall provide the other parties
with an opportunity to review and comment on any proposed public announcement before it is
made. |
| (i) | Any notices, reports or other correspondence (hereinafter collectively
referred to as “correspondence”) required or permitted to be given hereunder
shall be sent by international courier, facsimile, electronic mail or delivered by hand to
the party to whom such correspondence is required or permitted to be given hereunder. Where
a notice is sent by overnight courier, service of the notice shall be deemed to be effected
by properly addressing, and sending such notice through an internationally recognized express
courier service, delivery fees pre-paid, and to have been effected three (3) business days
following the day the same is sent as aforesaid. Where a notice is delivered by facsimile,
electronic mail, by hand or by messenger, service of the notice shall be deemed to be effected
upon delivery; provided that facsimile or electronic mail alone does not constitute an effective
notice. |
| (ii) | All correspondence shall be addressed as follows: |
Powerbridge Technologies Co., Ltd.
Address: Advanced Business Park, 9th Fl, Bldg C2
29 Lanwan Lane, Hightech District,
Zhuhai, Guangdong 519080, China
Address:
Attention:
Email:
| (iii) | Any entity may change the address to which correspondence to
it is to be addressed by notification as provided for herein. |
| (c) | Captions. The captions and paragraph headings of this Agreement
are solely for the convenience of reference and shall not affect its interpretation. |
| (d) | Severability. Should any part or provision of this Agreement be
held unenforceable or in conflict with the applicable laws or regulations of any jurisdiction,
the invalid or unenforceable part or provisions shall be replaced with a provision which
accomplishes, to the extent possible, the original business purpose of such part or provision
in a valid and enforceable manner, and the remainder of this Agreement shall remain binding
upon the parties hereto. |
| (e) | Governing Law; Arbitration. |
| (i) | This Agreement shall be governed by and construed in accordance
with the internal and substantive laws of the State of New York. |
| (ii) | Other than as set forth in Section 6(e)(iii), each of the
parties hereto irrevocably agrees that any dispute or controversy arising out of, relating
to, or concerning any interpretation, construction, performance or breach of this Agreement,
shall be submitted to arbitration, which shall be conducted in Hong Kong under the auspices
of the Hong Kong International Arbitration Centre (“HKIAC”) in accordance with
the HKIAC Administered Arbitration Rules then in effect. If submitted to arbitration in any
jurisdiction, the decision of the arbitrator shall be final, conclusive and binding on the
parties to the arbitration. Judgment may be entered on the arbitrator’s decision in
any court having jurisdiction. The parties to the arbitration shall each pay an equal share
of the costs and expenses of such arbitration, and each party shall separately pay for its
respective counsel fees and expenses; provided, however, that the prevailing party in any
such arbitration shall be entitled to recover from the non-prevailing party its reasonable
costs and attorney fees. |
| (f) | Amendment. This Agreement may not be amended, modified or terminated,
and no rights or provisions may be waived, except with the written consent of the Company
and Purchaser. |
| (g) | Expenses. Each party will bear its own costs and expenses in connection
with the drafting and negotiation of this Agreement. |
| (h) | Assignment. This Agreement shall be binding upon and inure to
the benefit of the parties and their successors and permitted assigns. The Company may not
assign this Agreement or any rights or obligations hereunder without the prior written consent
of the Purchaser (except by merger, stock sale, consolidation, reorganization or similar
transaction) and the Purchaser may not assign any or all of its rights under this Agreement
without the prior written consents of the Company. Any purported assignment in violation
of this Section shall be void. |
| (i) | Survival. The respective representations and warranties given
by the parties hereto shall terminate upon the earlier of (i) the first anniversary of the
Closing, and (ii) the date on which this Agreement is terminated in accordance with Section
6(m) of this Agreement. Notwithstanding any applicable statute of limitations, any claim
with respect to the failure of a representation or warranty to be true and correct (other
than as a result of fraud or willful misconduct) that is not asserted within such timeframes
may not be pursued and is hereby irrevocably waived after such time. |
| (j) | Waiver. At any time prior to the Closing, any party may (i) extend
the time for the performance of any obligation or other act of any other party, (ii) waive
any inaccuracy in the representations and warranties of any other party contained herein
or in any document delivered pursuant hereto and (iii) waive compliance with any agreement
of any other party or any condition to its own obligations contained herein. Any such extension
or waiver shall be valid if set forth in an instrument in writing signed by the party or
parties to be bound thereby. No failure or delay by any party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. |
| (k) | Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto respecting the subject matter hereof and supersedes all prior
agreements, negotiations, understandings, representations and statements respecting the subject
matter hereof, whether written or oral. No modification, alteration, waiver or change in
any of the terms of this Agreement shall be valid or binding upon the parties hereto unless
made in writing and in accordance with the provisions of Section 6(f) hereof. |
| (l) | Counterparts; Reproductions. This Agreement may be executed in
any number of counterparts, each of which shall be an original, but all of which together
shall constitute one instrument. A facsimile, portable document file (PDF) or other reproduction
of this Agreement may be executed by one or more parties and delivered by such party by facsimile,
electronic mail or any similar electronic transmission pursuant to which the signature of
or on behalf of such party can be seen. Such execution and delivery shall be considered valid,
binding and effective for all purposes. |
| (i) | This Agreement may be terminated, and the transactions contemplated
hereby abandoned at any time, by mutual consent of the Company and the Purchaser. This Agreement
may also be terminated (x) by the Purchaser, by written notice to the Company, or (y) by
the Company, by written notice to the Purchaser; provided, however, that no such termination
will affect the right of any party to sue for any breach by any other party (or parties),
and provided, further, that the right of any party to terminate this Agreement shall not
be available to any party who’s action or failure to act has been a principal cause
of or resulted in the failure of the Closing to occur on or before such date and such action
or failure to act constitutes a material breach of this Agreement. |
| (ii) | If terminated, this Agreement shall become void and there shall
be no liability or obligation on the part of any party hereto or their respective officers,
directors or affiliates; provided, however, that (1) each party shall remain liable for any
breach of this Agreement prior to its termination, and (2) the provisions of this Section
6 shall remain in full force and effect and survive any termination. |
| (n) | Further Assurances. Each party agrees (i) to furnish upon request
to each other such further information, (ii) to execute and deliver to each other such other
documents, and (iii) to do such other acts and things, all as the other party may reasonably
request for the purpose of carrying out the intent of this Agreement and the documents referred
to in this Agreement. |
| (o) | WAIVER OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY
JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES EACH KNOWINGLY AND
INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY,
IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY. |
(Remainder of Page Intentionally Left Blank)
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first written above.
| |
THE
COMPANY |
| |
|
|
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POWERBRIDGE
TECHNOLOGIES CO. LTD. |
| |
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By: |
|
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Name: |
|
| |
Title: |
|
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first written above.
| |
THE
PURCHASER |
| |
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By: |
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Name: |
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Title: |
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